Ngatoko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 359

Ngatoko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 359 (7 March 2024)
Division:GENERAL DIVISION
File Number: 2020/6085
Re:Junior Ngatoko
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:7 March 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 24 September 2020 that the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (temporary) visa not be revoked is set aside; and in substitution, the cancellation of the applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.
..........[SGD]..............................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act 1958 (Cth) – non-revocation of mandatory visa cancellation – Direction No.99 – where application remitted from Federal Court of Australia – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – domestic violence – where applicant has strong connection to nieces and nephews in Australia – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Cases
Commissioner of Police v Bowtell (No. 2) [2018] NSWSC 520
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FYBR v Minister for Home Affairs [2019] FCAFC 185
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1528
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
R v Tapaevalu [2019] NZHC 1867
Sergeant Gary Broadhurst v Nomads Motorcycle Club Incorporated [2018] NSWSC 71
Tapaevalu v R [2021] NZSC 26
Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583
Secondary Materials
Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
7 March 2024
INTRODUCTION

The applicant is a 30-year-old New Zealand citizen. On 16 July 2016, he was a issued a class TY Subclass 444 Special Category (Temporary) visa (the visa).[1]
[1] R1, 97.
On 20 February 2020, he was convicted of various domestic violence offences and sentenced to an aggregate sentence of 20 months with a non-parole period of 15 months, commencing on 3 February 2019.[2]
[2] R2, 148–149.
On 21 April 2020, his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). The non-parole period for his sentence expired on 2 May 2020, and he was transferred to Villawood Immigration Detention Centre.[3]
[3] S20, 147.
On 7 May 2020, he applied for revocation of the cancellation decision to the Respondent's department (the Department).[4] On 27 July 2020, he was invited to comment on further information the Department had received to which he responded on 30 July 2020.[5]
[4] R1, 64.
[5] R1, 98; R1, 86.
On 24 September 2020, the delegate decided, pursuant to subsection 501CA(4) of the Act, not to revoke the cancellation of the applicant's visa.[6] On 4 October 2020, the applicant applied to the Tribunal for review of this decision.
[6] R1, 17.
On 14 April 2021, the Tribunal affirmed the decision under review.
On 29 September 2023, the Federal Court quashed the Tribunal’s decision and remitted it for redetermination according to law.
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(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.
I am satisfied, based on the criminal intelligence records provided to the Tribunal, that on 20 February 2020 the applicant was sentenced to a term of imprisonment of more than 12 months.
I note that the applicant was released from immigration detention on 3 February 2023, following the Federal Court decision in Pearson v Minster for Home Affairs [2022] FCAFC 203 (Pearson). Subsequently, the decision in Pearson was statutorily annulled. The effect of the statutory reversal is that an aggregate sentence is relevantly a ‘sentence’ for the purpose of subsection 501(7)(c) of the Act.
I therefore find that he does not pass the character test by reason of the combined operation of subsections 501(6)(a) and 501(7)(c) of the Act.
The question for the Tribunal is whether there is ‘another reason’ why the original decision to cancel his visa should be revoked.
THE REMITTAL
The Tribunal held a Directions Hearing on 23 November 2023 at which a timetable was set for the remittal.
The Respondent was represented by Mr Fyfe, solicitor, Minter Ellison. The applicant appeared by telephone, without legal representation. He was directed according to standard procedures to lodge witness statements and any further evidence upon which he intended to rely by certain dates.
On 31 January 2024, the Respondent filed a Remittal Bundle containing the original materials, which included the Respondent’s Statement of Facts, Issues and Contentions dated 25 November 2020, as well as 130 pages of documents provided under section 501G of the Migration (the “G documents”); 189 pages of supplementary documents relating to offending history; and 165 pages of further supplementary documents consisting of IHMS Health Records.
The Respondent also provided a refreshed Statement of Facts Issues and Contentions, and a transcript for the Tribunal hearing on 13 April 2021, along with the most recent SERCO records.
The applicant provided a personal statement filed on 11 January 2024.
The remittal was scheduled for 26 February 2024. The applicant did not attend, and the matter was adjourned to 27 February 2024.
Mr Fyfe appeared by video, and the applicant appeared by telephone, not having a functioning computer.
He told the Tribunal that he had refrained from providing any additional information or calling any witnesses because he believed (wrongly) that he was not able to do so. When questioned about his mistaken belief, he referred to advice given to him by his former lawyer.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers.
The current written directions issued are contained in Direction No. 99 (the Direction), which commenced on 3 March 2023. The Direction supersedes Direction No. 90 which in turn replaced Direction No. 79, which was current on 13 April 2021, when the matter was previously heard by the Tribunal.
The Tribunal is required by law to apply the current Direction.[7] The applicant does not have an ‘accrued right’ to have the matter heard by reference to Direction No. 79.[8]
[7] Migration Act, subsection 499(2A).
[8] Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583; Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1528.
The Direction provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction.
Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)
The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes ‘another reason’ under paragraph 501CA(4)(b)(ii).
I have reviewed the material before the Tribunal, and the applicant’s evidence given on the remittal, and I am satisfied that there is ‘another reason’ why the mandatory cancellation of his visa should be revoked under subsection 501CA(4).
I am satisfied three of the primary considerations weigh against revoking the mandatory cancellation (PC1, PC2 and PC5), and two primary considerations and one ‘other consideration’ weigh in favour of revoking it (PC3, PC4, and OC2). The remaining considerations are neutral. Although the case is finely balanced, I am satisfied that the correct and preferable decision is to set aside the original decision and reinstate his visa.
The remainder of this decision provides amplification of this decision.
THE EVIDENCE
The Respondent relied for the most part upon the transcript of the original hearing before the Tribunal. The only new material related to the contents of the applicant’s personal statement, and some additional SERCO records.
Mr Fyfe cross-examined the applicant on his personal statement, which described his reasons for offending. The applicant said that his offending was caused by several factors, including his failing relationship, intoxication, and infidelity. He said that his work injury contributed to his stress. He said that his partner criticised him for not working and this caused a lot of stress. He was also taking heavy pain killers and had mood swings. He said that he started thinking that she was seeing other people. He said that she made him move in with her and he felt powerless. He did, however, accept full responsibility for his offending. He was not seeking to blame the victim but to explain his behaviour. He said that he was no longer in an intimate relationship with this person.
He was also cross-examined at length about his family ties. This is considered below.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
The first primary consideration is the protection of the Australian community.
The Direction states that crimes of a violent nature against women and children, and family violence, are viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed. Moreover, acts of family violence are regarded as very serious regardless of whether there is a conviction imposed.
At the original hearing, held on 13 April 2021, the Tribunal was satisfied that the protection of the Australian community weighed heavily against revoking the mandatory cancellation.
It is now more than five years since his offending, and he has been in the community for the past year.
In response to a question from the Tribunal, Mr Fyfe confirmed that the applicant had been released from immigration detention on 3 February 2023 following the decision by the Federal Court in Pearson. By coincidence, this was exactly four years after his last arrest on 3 February 2019. On 17 February 2023, following the statutory reversal of that decision, a letter was sent to the applicant indicating he was required to contact immigration authorities. He did not report to the Australian Border Force and therefore remained an unlawful non-citizen.
Over the past year he has been in the community and making daily visits to his sister and her children.
Importantly, the applicant stated that his drug addiction was now controlled with medication and that he was under medical supervision. He gave oral evidence that although he was addicted to Buprenorphine at the time of his release,[9] he was now under medical care. He said that when he was released, he did a course and was now on medically prescribed Suboxone. He said:
I am now on Suboxone – I still have an addiction but I have to take it slowly…its now prescribed and controlled.
[9] Remittal Bundle, 332.
The applicant said that he had a job lined up and he was just waiting to see the outcome of ‘this immigration issue’. He had been doing volunteering work and a barbering course. He was still receiving workers’ compensation payments. He did not see any of his old friends. He had not been arrested or charged with anything. He was asked whether he currently had a girlfriend. He said that he hadn’t committed to anything and had not been in a domestic relationship since his release to the community.
The risk matrix has changed somewhat, although Mr Fyfe argued that he had not been tested in a romantic ongoing relationship.
The protection of the community is still a potent factor against the applicant. However, I consider that it weighs somewhat less strongly than it did three years ago when this matter was previously considered by the Tribunal.
Family violence committed by the non-citizen (PC2)
Under the Direction, a decision-maker is required to consider whether the non-citizen has engaged in family violence. This is a primary consideration. Family violence is defined as:
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
Various examples are given in the Direction, which include assault, stalking, and intentionally damaging or destroying property. The applicant has engaged in such behaviour, for which he was been convicted.
Under the Direction, paragraph 5.2(6) states:
the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
Family violence must be considered separately in relation to each of the contexts referred to in the Direction. This does not represent ‘double-counting’ but gives effect to government policy.[10]
[10] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, at [42]-[46].
The family violence aspect of his offending was thoroughly canvassed at the original hearing. It was considered in the Tribunal’s finding that the protection of the community weighed strongly against him. The following narrative draws upon evidence provided to the Tribunal in 2021.
In October 2017 the applicant formed an intimate friendship with Ms V, a social worker.[11] The relationship was unstable, and Ms V had cause to call the police on several occasions.
[11] S2, 29.
There were several incidents in 2018. In February he was found unconscious under a parked motorcar, overdosed on drugs and alcohol. Ms V told police that they were in the process of breaking up, and that he had threatened to kill himself in previous weeks, but she did not believe him.[12] He was revived by ambulance officers and taken to hospital. Ms V seemed to believe, understandably perhaps, that the applicant needed counselling or treatment for his underlying mental health problems.
[12] S2, 33.
It seems that the relationship continued for a while. On 16 May 2018 there was another incident. The applicant got very drunk and had a loud argument with Ms V at her home. This gave rise to a charge of stalk/intimidate.[13] On 11 June 2018 there was another row at home and the applicant was said to have held Ms V in a bear hug. This gave rise to a second charge of stalk/intimidate.[14] On 22 July 2018 after the applicant and Ms V attended a cinema, she became concerned about his mental state.[15] On the way home she tried to take him to the Cumberland Hospital. He reacted violently, pulling her out of the driver’s seat and commandeering the car, ultimately leaving her by the side of the road.
[13] G9, 35.
[14] G9, 35.
[15] G9, 36.
On 1 August 2018 the police attended Ms V’s home in Fairfield to arrest the applicant. She told police he was not there but allowed them entry.[16] He was found hiding in Ms V’s bedroom.
[16] S2, 24.
He was charged on several counts, including common assault (DV), stalk/intimidate, taking his partner’s car without consent, and resisting an officer in execution of duty.
He seems to have been granted police bail and an apprehended violence order (AVO) was put in place, with the usual restrictions on contact.
On 4 October 2018 he appeared for sentence. The magistrate noted that Ms V was there to support him and provide some insight into his afflictions.[17] The magistrate noted:
The defendant's partner, who is present before the Court and the complainant in all of these matters, is now a number of weeks pregnant to the child of the relationship. Mr Fang has, in support of the mitigating factors to which he referred in his submissions, tendered a report of psychologist, Kerry Watson, dated 2 October 2018. That speaks of the defendant having been heavily intoxicated in relation to those offences committed on 16 May 2018 but, more generally speaking, suffering from a depressive disorder of moderate severe symptoms including persistent depressed mood, generalised anxiety, decreased interest in previous enjoyed activities, irritability, agitation, reduced motivation, hopelessness, helplessness; generally matters indicative of a significant deterioration in his mental health. It is said that he has good prospects for rehabilitation and is genuinely remorseful and contrite, although that is to be, in some respects, weighed against the incongruent extracts referred to in the pre-sentence report.[18]
[17] G9, 35.
[18] G9, 38.
The applicant was sentenced to twelve months imprisonment with a non-parole period of six months.[19] His parole release date was fixed for 31 January 2019.[20]
[19] G9, 40.
[20] G9, 40.
I refer to various notes made by corrections and parole staff in anticipation of his release to parole.[21] The notes suggest the following:
·The applicant had his own accommodation in Parramatta, but Ms V was living there, and there was an AVO in place;[22]
·Ms V had agreed to move out so that he could live there but as of the day before his release had not done so;[23]
·He had been declined crisis accommodation at Hope Hostel and Providential Homes, crisis accommodation for homeless men, and was not eligible for homelessness support (Link to Homelessness or ‘L2H’) from Family and Community Services;[24]
·As a non-citizen the applicant was not eligible for crisis accommodation support from Centrelink;[25]
·Cumberland Police confirmed that there were no enforceable AVOs in place for the applicant;[26]
·He told his parole officer that he did not want to reside with Ms V;[27]
·On the day following his release (1 February 2019) he was suffering from severe Suboxone withdrawals;[28]
·He was also attempting to clear an outstanding warrant.[29]
[21] S20, 120-123.
[22] S20, 120.
[23] S20, 120.
[24] S20, 120.
[25] S20, 120
[26] S20,121, 123.
[27] S20, 122.
[28] S20, 122.
[29] S20, 122.

The applicant was released from prison on Thursday, 31 January 2019. It is not clear where he stayed that night. Apart from the pre-release note, there does not appear to be anything else to show that the applicant had his own accommodation at Parramatta. He told the Tribunal that Ms V rang the Corrections Centre and said that it was okay for him to stay with her, and they met a train station, and he went home with her.[30] Ms V seems to have been living at Guildford, which is on the southern side of Parramatta Road.
[30] Transcript, 13 April 2021, at 69.
On Friday 1 February 2019, after his release, he had a meeting with his parole officer, who made the following note:
Initial reporting following his release from custody yesterday. Offender presented as unwell (sweating and glassy eyes) and upon enquired [sic] admitted to experiencing withdrawals for ongoing use of suboxone while in custody. Stated that he used it because he was told "time would fly" while in custody. He didnt expect to feel this way afterwards. Has already made an appt to see his GP at Westmead at 1130am. Advised offender that there was a warrant out for his arrest as a result of him not appearing for a court matter. His non attendance as we know it was a result of him being in custody, so he was advised to hand himself into Police and present his parole order which confirms he was in custody during the time he was required to be at court. Offender stated he would do so following his medical appt…
Offender was advised that there are no active AVOs, ie. the non contact AVO between he and his partner is not active which means they could reside together if they wished. He stated he would rather not at this stage, he just wants to be on his own... [31]
Advised UL [Person 1] of offender's admissions to withdrawing from suboxone which he was using while in custody, and his intention to remain off this drug since his release. Advised also that there are no active AVOs that would prohibit the offender from contact or residing with his partner [Ms V] however offender reports she has moved out and he resides there alone would like it to remain that way. (Emphasis added)[32]
[31] S20, 121,122.
[32] S20, 123.
Despite his recorded intention not to resume cohabitation with her, and to ‘be on his own’ and ‘get away from his old life’, it appears that the applicant and Ms V resumed their relationship.
On Friday 1 February, they went together to Fairfield Shopping Centre in the early evening, where according to a police facts sheet, they had a public row. They returned home and the arguing continued. He said that they were arguing about money because he had received some money and she spent it.[33] The facts sheet suggests that the source of conflict related to their relationship and whether Ms V was seeing other men. He deleted her phone contacts and took her phone. These events gave rise to a charge of stalk/intimidate.[34]
[33] Transcript, 13 April 2021, at 69, 70.
[34] S15, 91.
At some point that evening she called the police and inquired whether there was an active AVO in place. She did not give her address and the police were concerned about her safety.
The following evening, at around 6 pm on 2 February 2019, events occurred which led to his arrest on various charges.[35] The facts sheet suggests that at around 6 pm Ms V went into the backyard of her Guildford residence and screamed for help. Police were alerted (presumably by the neighbours) and attended the property. Their door knocking went unheeded, and fearing for the safety of Ms V, special police were called to force entry. The applicant was found upstairs in the bedroom. He was arrested and charged with common assault. Ms V had a minor injury to the nail bed of her finger, the artificial nail having become detached.
[35] S15, 93.
According to the facts sheet, Ms V told the police that she had not responded to their door knocking because she feared for her safety.
The applicant was taken into custody on 2 February 2019.
The applicant was charged with various offences including common assault (DV), resist officer in execution of duties, and stalk/intimidate. He was on remand for more than twelve months. Eventually, he pleaded guilty and came up for sentencing on 20 February 2020.[36]
[36] G10, 42.
On 20 February 2020, he was convicted of the following offences:
(a)Stalk/Intimidate intend fear physical etc harm (domestic) – T2;
(b)Common assault (DV) – T2;
(c)Resist officer in execution of duty – T2;
(d)Destroy or damage property <=$2000 (DV) – T2; and
(e)Stalk/Intimidate intend fear physical etc harm (domestic) – T2.
He was sentenced in the Local Court of New South Wales to an aggregate term of twenty months imprisonment with the non-parole period of fifteen months expiring on 2 May 2020.[37]
[37] S13, 79; G10, 42.
The learned magistrate noted that these offences occurred within 24-48 hours of being released from prison on parole, and that there were no special circumstances.[38]
[38] G10 at p 42.
On appeal, the Parramatta District Court confirmed the orders made on 20 February 2020.[39]
[39] S1 at pp 4–7, pp 10–11.
The gravamen of the applicant’s offending is the offences which arose within a domestic context, and for which he was sentenced in October 2018 and February 2020 to a total of 32 months of imprisonment.
I am prepared to accept that some of the applicant’s reported behaviour (such as the incident at the cinema on 22 July 2018) may suggest the existence of an underlying mental health problem. There is however no direct medical evidence before the Tribunal to support that hypothesis,[40] although there is some indirect evidence. A pre-sentence report makes reference to him seeing a psychologist for PTSD following his workplace injury.[41] The applicant has consistently and vigorously denied that he suffers from any mental illness.
[40] S2 at p 26.
[41] S11, at 75; Transcript, 13 April 2021, at 80 and following.
Unfortunately, the clinical assessment by Kerry Watson, psychologist, dated 2 October 2018 referred to by the magistrate in sentencing remarks in 2018 was not made available to the Tribunal, although some sense of it may be gained from the sentencing magistrate’s comments.[42] The Respondent’s solicitor stated that it was not provided as part of the summons material.
[42] G9 at p 38.
I am also prepared to accept that the lack of half-way house accommodation, coupled with his ongoing medical issues with drug withdrawals, were in some sense part of the context in which the second lot of offending occurred.
The context within which the offending occurred is not to be ignored. It appears that after serving six months of the twelve-month sentence imposed in 2018, the applicant was released on parole and to what was, in effect, a state of accommodation uncertainty (or homelessness) while he was suffering from withdrawals from Suboxone, a drug to which he had become addicted whilst in prison. The coordination between corrections, the parole office and the police seems to have occurred at the very last minute.[43] As noted above, he told the parole office he did not wish to live with Ms V and wanted to live alone when released, but she collected him from Parramatta station, and they went to her place in Fairfield.
[43] S20 at p 120-123.
There is some evidence that Ms V was motivated in part by sympathy for the applicant or a desire to assist him from a mental health perspective. I note that she visited him throughout his 2018 incarceration and visited him again on 6 February 2020 after he was taken into custody for the second set of offences.[44]
[44] S19 at p 105.
While the facts sheet tends to focus on matters of infidelity, with associated notions of controlling behaviour, the applicant’s evidence to the Tribunal highlighted the issue of money. He said that he had received a settlement from an insurance company, and she had spent it.[45] It is not necessary in these proceedings to determine where the seeds of their conflict lay. Acrimony about money or infidelity led to chronic instability; and what can only be described as a dysfunctional relationship.
[45] Transcript, 13 April 2021, at 69.
Paragraph 8.2(3) of the Direction states that certain factors must be considered where relevant. These include:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The applicant’s family violence offending was of relatively short duration, from May 2018 until February 2019. His most recent offending occurred more than 5 years ago. I also note that none of the incidents involved the infliction of physical harm on the victim. The most serious physical damage appears to have been a minor injury to her finger because of the detachment of an artificial nail. There is no evidence that the applicant has reoffended since February 2019. Moreover, his oral evidence on the remittal indicated that he had some insight into the stressors leading to his behaviour. While it cannot be said that he has been tested in an enduring romantic relationship, I note that according to his evidence he has an ongoing and close relationship with his sister and her three young children, and there has been no reported incidents of family violence.
I find that this consideration weighs against the applicant, but it cannot be said to weigh heavily against revocation.
The strength, nature and duration of ties to Australia: (PC3)
The applicant spent most of his first two decades in New Zealand, where he was born. He was raised by his grandparents, who passed away in 2015.
At the time of his arrival in 2016, the applicant had an uncle in Melbourne and two sisters in Australia. His immediate family in Australia then consisted of his sister (S1) and her three children in Brisbane, his uncle in Melbourne, and various cousins, who were over 18. He had a desire to return to Brisbane and help his sister with the children.[46] His other sister (S2) had returned to New Zealand with her three children.
[46] Transcript, 13 April 2021, at 24.
In the 2021 hearing, the Tribunal found that his ties to Australia were substantial, and this factor weighed moderately in favour of revocation of the mandatory cancellation.
The Federal Court was critical of the way this consideration was dealt with, specifically with regard to the impact upon the children referred to in his Personal Statement of his removal to New Zealand. The Court noted:
16. In the applicant’s personal circumstances form, he listed six minor children who are the children of his sisters, and are his nephews and nieces, as ‘his’ minor children. He said he lived with one sister and the mother of three of those children and saw them daily. He indicated that the impact on them was that they would grow up not knowing him and without a male role model. They would ‘miss out on footy and would probably stop playing and will be sad not having [him] around’. As to the impact on these children, he said:
[W]ell the boys I live with I pretty much take them training and to [their] footy game[s]. [T]he other kids [I am] pretty much [their] only uncle on [their] mother[‘]s side so they wouldn’t get to know me if I wasn’t here.
17. The three other children were those of his other sister. He indicated that he saw those children about five times a year during holidays and for their birthdays. At the time of the hearing before the Tribunal that sister and those children had returned to New Zealand. He listed a further three children who are his nephews and niece and appear to be the children of other siblings.[47]
…
56. The Tribunal’s reasons do not make any mention of the applicant’s representations to the effect that his nephews and nieces would grow up without him as an uncle and his support, at least, in playing ‘footy’ referred to at para [16]. Likewise, the Tribunal’s reasons do not mention the applicant’s representations to the effect that his extended family would be disheartened and that he was the ‘one that keeps the family together the one that organizes [r]eunions and family outings’ or that ‘the kids will suffer the most cause [I’ve] been around since they [were] born’ referred to at para [18]. While the Tribunal may have reached the conclusion that the best interests of minor children was a neutral consideration, that did not mean that the effect on minor children as members of the applicant’s immediate family was able to be ignored for the purpose of evaluating the strength, nature and duration of the applicant’s ties to Australia.
57. While it is not necessary for the Tribunal to refer to every piece of evidence and the reasons must not be read with an eye keenly attuned to error, the matters to which no reference is made in the Tribunal’s reasons were important elements or integers of the applicant’s representations made to the Minister in response to the invitation made under s 501CA(3) of the Act. The simplicity of the language the applicant has used to make his representations does not diminish the importance or significance of them from his perspective, as a person who has lost the right to reside in Australia. Having regard to the importance or centrality of these representations, I am not able to infer from the reasons as a whole or the specific paragraphs dealing with the strength, nature and duration of the applicant’s ties to Australia that the Tribunal has, in fact, identified, understood and evaluated the applicant’s representations.
58. The applicant’s representations as to the effect on his nephews and nieces and the sister with whom he had lived and intended to live was squarely raised in his representations. Paragraph 14.2(1)(b) of Direction 79 required the Tribunal to take those representations into account. There is no direct reference, at all, in the Tribunal’s reasons to the applicant’s representations made to the Minister in respect of the s 501CA(3) invitation or to his personal circumstances form. Otherwise, the Tribunal’s reasons only footnote the transcript of the hearing, which was not included in the application book, and the letter of the applicant’s sister referred to at para [20] of these reasons. It can be inferred that the Tribunal, at least, read that documentation to identify the members of the applicant’s family, but there is no engagement in the Tribunal’s reasons with the effect of the applicant’s removal on them, in particular, the three minor children living with his sister in Brisbane.
59. The focus of the Tribunal’s consideration of the ‘best interests’ of the minor children, referred to at para [23] of these reasons, was on the potential risk of harm the applicant posed to them due to his past conduct and association with an outlaw motorcycle gang. There was no direct consideration of the effect the applicant’s removal from Australia would have on those children as members of his immediate family. The ‘best interests’ of the minor children is a separate question to the effect removal of the applicant may have on them. There is no exploration of the effect of the applicant’s removal in the Tribunal’s reasons when considering the best interests of the children (T [55]-[64]) or the applicant’s ties to Australia (T [87]-[92]). Therefore, there is nothing in the Tribunal’s reasons from which it can be inferred that the Tribunal has ‘identified, understood and evaluated’ an important integer of the applicant’s representations as a whole. Likewise, it cannot be inferred that the Tribunal has taken into account the effect that removal of the applicant from Australia would have on the minor children and their mother, which is raised in the materials that were before the Tribunal and that it was obliged to consider in accordance with para 14.2(1)(b) of Direction 79.
60. While the Tribunal’s reasons need only include findings on material questions of fact, it is difficult to see how a finding of fact made on an express representation that the Tribunal was bound to consider and take into account could not have been relevant or material to the Tribunal’s decision if it had, in fact, been identified, understood and evaluated. Therefore, the absence of any express reference to the effect of removal of the applicant from Australia on, in particular, the minor children and sister with whom he had regular contact, implies that the Tribunal overlooked that integer of the applicant’s representations and, thereby, failed to perform the statutory ‘review’ of the delegate’s decision.[48]
[47] T6, 529.
[48] R6, 544-545.
Under the Direction, this consideration is elevated to a primary consideration. Paragraph 8.3(1) provides that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
At the rehearing the applicant was examined at length regarding his relationship with various family members. I note that he did not submit any documentary evidence or witness statements about these matters, under the mistaken belief that he was not permitted to do so. His attendance at the Directions Hearing held on 23 November 2023 at which he was directed to file evidence by a certain date suggests that this belief was not held on reasonable grounds.
He was examined about his family relationships. He said that he was living in Brisbane by himself. He had his own place.
He said that he saw his sister S1 and her three children nearly every day. She had two boys aged 14 and six, and a daughter aged 12.[49] The older children were born in New Zealand and the younger boy in Australia. He was uncertain as to whether they held dual citizenship.
[49] For list of children, see G 76, 74.
He was asked whether S1’s children knew their father and said that they knew him, but they did not have much contact.
He said that he took the three children to rugby league training three times a week and a game on Saturday. All three were heavily into playing rugby and that he wanted to teach them ‘the same way that I wasn’t taught’.
As to the impact his removal would have on these children, he said that it would have a ‘big effect’ on his teenage nephew had just started to play league. As to his 12-year-old niece and his six-year-old nephew, he thought that the boys would be hardest hit.
He said that they did not have a phone or access to a phone.
His cousin C1 in Brisbane was 29 years old and had a 14-year-old daughter.
He was asked about other relations and referred to some relatives living in Melbourne. These included three cousins (his father’s sister’s children). In total, the applicant referred to five cousins living in Melbourne, four of whom had children of their own. Two of these cousins have newborn children whom the applicant has not met. His cousin C2 has a daughter, and his cousin C3 has two sons. The applicant emphasised his relationship with these three children.
He agreed that he went into prison on 4 October 2018 and was released from immigration detention 3 February 2023. He had not seen his Melbourne relatives except for a few days over Christmas in 2023. On that occasion he saw C2 and her daughter, and C3 and his children. He said that ‘we were all together’ at Christmas because his relatives had come up to Brisbane.

He considered that some of his relations would be affected by his removal. He thought that C3’s sons and C2’s daughter would be affected.
He had not seen other family members since his release from detention.
He agreed that some would not be affected by his removal. His list of relatives included four newborn children. They would not be affected.
The relatives in Melbourne would not be affected because he had only seen them once at Christmas in the past six years.
He was asked whether he considered himself to be a good role model. He said that he would encourage his young relatives not to go through what he went through.
He said that his other sister, S2, had gone to the Cook Islands with her three children.
The task of the Tribunal was not made easier by the lack of current written information concerning these various family members. Taken at face value, his removal is not likely to have much impact on his family who are based in Melbourne.
I accept that it may have some impact upon C2 and C3 and their respective children.
In terms of S1 and her three children, I accept his oral evidence that his removal may have a major impact upon them. When the Tribunal considered this matter in 2021, the extent of his future relationship with his sister and her children was somewhat conjectural. The applicant has benefited from the fact that since his release on 17 February 2023, he has been able to establish a positive track record with these children.
At the previous hearing, the Tribunal considered that the best interests of minor children affected by a decision to remove him was neutral. That assessment was influenced heavily by his past domestic violence offending and his association with outlaw motorcycle gang members. The evidence before the Tribunal is that those factors have receded. Moreover, as the Federal Court, with respect, correctly emphasises, the question of the best interests of minor children is a separate question from that of the impact upon them of his removal from their lives.
I am satisfied that S1 and her three children are properly regarded as his immediate family members and that the impact upon them would be severe. They have a right to remain in Australia indefinitely, and at least one of the children is an Australian citizen.
Paragraph 8.3(3) of the Direction also requires the Tribunal to consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The applicant has an extended family in Australia. This has been considered above.
Finally, under paragraph 8.3(4) the Tribunal must consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
It cannot be said that the applicant spent his formative years in Australia, although I note that he did make several trips to this country before taking up residence in 2016. He was employed and sustained a serious workplace injury which has had long term consequences for his mental and physical health.
Overall, I consider that this primary consideration weighs strongly in favour of revoking the mandatory consideration.
Best interests of minor children in Australia affected by the decision: PC4
The Direction requires that the Tribunal consider the best interests of minor children in Australia affected by the decision.
The Respondent notes that prior to the hearing the applicant had identified nine minor children.[50] To this number may be added the four newborn children identified by the applicant at the hearing. The Respondent contends that there is limited information about the nature of these relationships. None of the children visited the applicant while he was incarcerated.[51] It may be inferred that the applicant has had only very limited contact with the children, other than his sister’s three in Brisbane.
[50] RSFIC, [44].
[51] R2, 241.
The Respondent contends that ‘only limited weight should be attributed to this factor in favour of revoking the visa cancellation.’
The applicant’s relationship with S1 in Brisbane and her three minor children has been discussed above. At the 2021 hearing, the applicant told the Tribunal that he hoped to reside with S1 and help her with the children.[52] He said that he lived with S1 in Brisbane for a short period in 2016.
[52] Transcript, 13 April 2021, at 23.
In May 2020 S1 provided a supporting reference.[53] She describes him as a ‘role model’ and ‘a father figure’ for her children and asks for a chance for her children to have him back with them.
[53] G19, 86.
At the previous decision, the Tribunal was clearly concerned about his bikie affiliations. The Tribunal said:
4. Over the summer of 2017 the Applicant shared a house in Sydney with a New Zealander I will refer to as ET. The Applicant knew ET’s brother from New Zealand.[54] He ‘bumped into’ ET in Sydney, and they decided to share a house - the Applicant, ET and his wife. ET was a patched member of the Nomads outlaw motorcycle gang.[55]
5. ET returned to New Zealand in 2017 and became involved in the illegal drug trade. He was murdered in April 2017. His wife was shot several times in the course of the attack but, remarkably, survived with two bullets lodged in her brain.[56] Three individuals are presently serving long sentences in New Zealand for murder and attempted murder.[57]
6. The Applicant continued to associate with Nomad club members after ET returned to New Zealand. He became very friendly with another senior member he thought to be a retired leader, and used to drive him around regularly.[58] He became friends with this person. He did not become a full club member, but hung around the fringes. He received several[59] consorting warnings[60] from Strike Force Raptor, the specialised police unit set up to combat organised outlaw motorcycle gangs.
7. In 2017 and 2018 the Nomads were engaged in a turf war with another outlaw motorcycle gang, the Comancheros, and Strike Force Raptor was kept busy keeping the warring parties apart. On several occasions, the car the Applicant was travelling in was stopped and searched. He received further consorting warnings.[61]
8. His friend, the retired leader, was arrested at some point and the Applicant said that after that he ‘cut all ties’.
Once he got arrested, I think it was back in 2018, I cut all ties, and you know, I started moving on. I move in with my missus. I stopped seeing all of them. Like, you know, I just, like, I just thought the bloke was a good bloke, a good person, you know, despite being in a gang. I just hanged around him. But once he got arrested and he went to gaol, I cut ties and I did not hang around none of them. I moved in with my missus. And yes, moved forward. [62]
[54] Transcript, 13 April 2021, at 35.
[55] The Nomads are an outlaw motorcycle gang or ‘OMCG’: see Commissioner of Police v Bowtell (No. 2) [2018] NSWSC 520; Sergeant Gary Broadhurst v Nomads Motorcycle Club Incorporated [2018] NSWSC 71.
[56] R v Tapaevalu [2019] NZHC 1867.
[57] Tapaevalu v R [2021] NZSC 26.
[58] Transcript, 13 April 2021, at 48-49.
[59] S2, 31, 32, 34, 38–39, 40, 42; S21, 152.
[60] See Crimes Act 1900 (NSW), s 93X.
[61] S2, 34.
[62] Transcript, 13 April 2021, at 49.
The Tribunal concluded:
58. An objective assessment is that it is very unclear that the children’s best interests are served by ongoing contact with the Applicant.
59. The Applicant’s past behaviours, as illustrated by his offending, have been unpredictable and potentially dangerous. The sort of behaviour that led to his convictions for domestic violence offences poses a serious risk to any young family. Moreover, he has developed a drug dependency in prison.
60. The company he has kept especially in Sydney is problematic. The connection with an outlaw motorcycle gang has exposed him to risk.
61. There is nothing to suggest that their mother is not able to manage their welfare.
62. As matters stand, it is idealistic but not realistic to believe that ongoing contact with the children is necessarily in their best interests.
63. I cannot find that the best interests of minor children favour revocation of the mandatory cancellation.
64. I find that this primary consideration is at best neutral.
The applicant told the Tribunal that he no longer associated with any of his previous ‘friends’. He said that he had no contact with any outlaw motorcycle gangs. The sort of people that the applicant associates with is relevant to an assessment of the best interests of minor children affected by the decision.
With the benefit of hindsight and for the reasons given above the Tribunal is satisfied that considerable weight should now be given to the relationship between the applicant and his Brisbane based niece and nephews.
On face value his claim that he no longer associates with bikies, and that he is devoted to developing sports in S1’s minor children, supports a claim that revocation of the mandatory cancellation is in their best interests.
Quantifying the degree of weight is difficult because of the lack of corroboration underpinning his claims.
Mr Fyfe did not seek to impugn the claims made regarding the degree of contact he now has with S1 and her children. The Tribunal accepts his oral evidence on these vital points.
I accept that that revocation of the mandatory cancellation would be in the best interests of these children.
Expectations of the Australian community: PC5
It is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against an offender in any particular case varies according to the seriousness of the offending.[63]
[63] FYBR v Minister for Home Affairs [2019] FCAFC 185.
The applicant’s offending involved violence or threats of violence against Ms V, and this weighs heavily against him. Visa holders who commit offences of a domestic nature against women may expect to have their visa cancelled and in the absence of other compelling factors they can expect to be removed from Australia.
There is perhaps something arising from his mental health that detracts from the moral blameworthiness of his offending. It appears that Ms V considered that he required assessment and possible treatment. The applicant gave the following evidence at the original hearing:
…she reckons - you know, she said they keep staring at me. And I said, actually do you reckon they’re talking about me or why do they keep staring at me, what’s - are they (indistinct words). And there was like three or four odd people that keep staring at me.
I’ve seen some of the health records and from what I’ve seen they seem to be - do you have any sense of whether you have ever suffered from mental problems or a mental breakdown. Do you think this incident (indistinct) or not?---Yes, like, I’ve had a few - like, a few instances about - you know, breaking down and that, like, it’s - yes, there’s lots of effects of the medication that I’ve been prescribed from 2015 - like, prior to all of this I was healthy, I never - you know, took drugs, I never done nothing, but I don’t know if that anti-depression is the problem here because I wasn’t - you know, taking it at the time (indistinct words) - like, it was a bit over exaggerated because I was just asking her whether you think the people are staring at me, were they staring, you know. And she took it upon herself to say, you’re crazy, you’re crazy, which made me agitated - like, because I know I’m not crazy, you know. And for her to go straight to the hospital it did make me upset and it did make me angry, and I didn’t want to go - all I wanted to do was go home and she refused it.[64]
[64] Transcript, 13 April 2021, 61.
However, there is little objective material before the Tribunal pointing to an underlying mental health condition and the applicant denied that he was mentally unwell.
I note that there are extensive medical IHMS records covering the period February 2020 to the present.[65] They record his growing addiction to Buprenorphine. Psychological support reports contain a reference to a threat of self-harm,[66] but overall, his risk of suicide was assessed as low.[67] In 2020, he appears to have been admitted to hospital for physical ailments on two occasions but discharged.[68]
[65] See Respondent’s Further Supplementary Records.
[66] FS11, 159.
[67] FS8, 153.
[68] FS3, 136; FS9, 154.
An overall clinical report states:
Background: On review, describes a history of depression in 2017 prior to prison. Cut his left thumb in a workplace injury. Was off work long term on worker's compensation. Was seeing a psychologist and states he was begun on an antidepressant. Admits he was drinking heavily at the time. States this is where his issue with opiates began as he was on pain relief. Had suicidal ideation but made no attempts. Junior did not receive any treatment when in prison. However, admits he sourced occasional Mirtazapine off other inmates to help sleep. Since at VIDC states his mood has been okay. Does not like environment and is keen to get visa and move forward with his life. States he occasionally has sleep problems. GP charted Mirtazapine PRN and Junior has used once with good effect. Admits he has been in a rut and states he knows he needs to return to exercising. Concentration okay. No hallucinations or paranoia. No suicidal ideation.
…Engages reasonably despite stating he is unsure why he is been booked to see a psychiatrist. Fluent speech. Affect euthymic and reactive. No formal thought disorder. No reported psychosis and none inferred by behavior. No suicidal ideation. Insight intact.
Imp:
-    No current evidence of depression or other mental illness. Not psychotic.
-    Past history of depression in context of serious workplace injury. However, was also drinking alcohol regularly which would have contributed to low mood.
-    Risk to self low.[69]
[69] FS1, 2.
Overall, I am satisfied that PC5 weighs against revoking the mandatory cancellation.
OTHER CONSIDERATIONS
I turn to consider the other considerations identified in the Direction.
Legal consequences of decision under section 501 or 501CA: OC1
The effect of a decision not to revoke the cancellation decision is that the applicant will be removed from Australia.
In his original application, the applicant did not raise a protection claim in specific terms. He did raise the possibility that he may be targeted by those who orchestrated the killing in New Zealand of his friend ET.
The Tribunal held:
83. The situation in New Zealand falls well short of establishing in objective terms the requisite degree of violence. This is so despite the occasional outbreak of violence between outlaw motorcycle gangs, or isolated acts of terrorism, not matter how tragic, which occur on both sides of the Tasman. Moreover, it is not possible to determine whether it would be safer to stay in Australia or be in New Zealand.
84. In my opinion, the Applicant’s expressed concerns do not provide a ‘serious and substantive’ factual basis for engaging Australia’s international obligations, and therefore it is not necessary to consider whether the Applicant’s concerns are capable of characterisation as a non-refoulement claim.[70]
[70] DOB18 v Minister for Home Affairs [2019] FCAFC 63, per Robertson J at [191].
I find that OC1 is neutral.
Extent of impediments if removed: OC2.
The applicant spent some of 2015 in Melbourne working for his uncle, before returning briefly to New Zealand.[71] He returned in July 2016 and has not travelled offshore since then.[72]
[71] G24, 97; Transcript, 13 April 2021, 18.
[72] G24, 97.
He spent a few months with S1 in Brisbane before moving to Sydney in November 2016.
On his second day in a new job a drop saw fell on his hand causing a serious injury.[73] He received a substantial compensation payout and has not worked since. The injury was very damaging to his physical and mental health.
[73] G16, 80.
The Tribunal previously found that the impediments the applicant would face if returned to New Zealand weigh moderately in favour of revocation of the mandatory cancellation. No evidence has been provided to the Tribunal on the remittal to detract from this finding.
Impact on Victims: OC3
There is no evidence before the Tribunal of any specific harm to victims, and therefore this consideration is neutral.
Impact on Australian business interests: OC4
This consideration is also neutral.
CONCLUSION
I am satisfied that three of the primary considerations (PC1, PC2 and PC5) weigh against revoking the mandatory cancellation, and that two of the primary considerations (PC3, PC4) weigh in favour of revoking the mandatory cancellation.
One of the ‘other’ considerations weigh in favour of revoking the mandatory cancellation.
The remaining ‘other considerations’ are neutral.
The Tribunal performs its task erroneously by focussing on each consideration in isolation without properly weighing them against one another.[74]
[74] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26]-[28].
I find that the applicant has a substantial criminal record and does not pass the character test, as defined in section 501(6) of the Act.
I have reviewed the material before the Tribunal, and the applicant’s evidence, and I am satisfied that there is ‘another reason’ why the mandatory cancellation of his visa should be revoked under section 501CA(4).
The governing aspect of this decision relates to the evidence given by the applicant as to his relationship with his sister in Brisbane and her children. The applicant has demonstrated, to the satisfaction of the Tribunal, that he has a positive relationship with these children and that they are unlikely to be harmed by his previous affiliations. He has given evidence as to his rehabilitation and medical respite from drug addiction. There is reason to be optimistic about his future in Australia.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 24 September 2020 that the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (temporary) visa not be revoked is set aside; and in substitution, the cancellation of the applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........[SGD]................................................................
Associate
Dated: 7 March 2024

Dates of hearing: 26 and 27 February 2024

Applicant: In person

Solicitors for the Respondent: Mr J. Fyfe, Minter Ellison

Dates of hearing:	26 and 27 February 2024
Applicant:	In person
Solicitors for the Respondent:	Mr J. Fyfe, Minter Ellison