Ngatupuna and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3689

Ngatupuna and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3689 (28 October 2022)
Division:GENERAL DIVISION
File Number(s): 2021/2279
Re:Johnny Patrick Ngatupuna
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:28 October 2022
Place:Sydney

The decision under review is affirmed.
....................................[sgd]....................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – links to the Australian community – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 500, 501, 501CA
Cases
Ahmed v Minister for Immigration and Border Protection [2018] AATA 4458
Ali and Minister for Home Affairs [2018] AATA 2512
AFY18 v Minister for Home Affairs [2018] FCA 1566
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Dinkha v Minister for Home Affairs [2018] AATA 3037
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Ferreira and Minister for Home Affairs [2018] AATA 2599
FYBR v Minister for Home Affairs [2019] FCAFC 185
Grima and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 761
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1126
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 2021
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Leha v Minister for Immigration [2000] AATA 1054
Matthews v Minister for Home Affairs [2020] FCAFC 146
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
Ngatupuna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 390
Nguyen v Minister for Immigration and Border Protection [2017] AATA 1157
NSWQ and Minister for Immigration and Border Protection [2016] AATA 373
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
QGMJ v Minister for Immigration and Border Protection [2017] AATA 1537
R v JT [2007] NSWDC 377
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Slynt v Slynt [2017] FamCA 812
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90
XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 441
Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433
YKSB v Minister for Home Affairs [2020] FCA 476
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
28 October 2022
Status of this hearing

On 20 December 2019 the Minister (the Respondent) cancelled the Subclass 444 visa held by Mr Johnny Patrick Ngatupuna (the Applicant) pursuant to the provisions of subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision was made on the basis that the Applicant had a “substantial criminal record” (having been sentenced to a term of imprisonment of 12 months or more) and hence failed the “character test” set out in the Act. In such circumstances cancellation of a visa is mandatory under the Act.
On 6 January 2020 the Applicant sought formal review of that cancellation decision, however on 13 April 2021 a delegate of the Minister affirmed the original decision. The Applicant then, on 14 April 2021 applied to this Tribunal (differently constituted) to review that decision, leading on 6 July 2021 to the Tribunal also affirming the cancellation decision. The Applicant further exercised his right to have the Tribunal decision reviewed by the Federal Court where on 14 April 2022, Bromwich J issued orders quashing the Tribunal decision and remitting the matter back to the Tribunal (differently constituted) to be determined according to law. The remitted application was heard in this Tribunal on 12 and 13 October 2022.[1]
[1] As the matter was heard on remittal, the time limit provisions of paragraph 500(6L)(c) do not apply.
As part of their submission, the Respondent sought to tender the transcript of the hearing before the first Tribunal (22 and 23 June 2021) in order not to have to repeat asking the Applicant all the same questions that had been asked previously and to rely upon his previous answers to those questions.
It is not up to the Tribunal to determine how a party should run its case provided that procedural fairness is accorded to all parties.
The Tribunal agreed to receive the transcripts into evidence and to rely upon them as evidence in relation to the matters therein discussed. It did so with the caveat that the Applicant was provided with time to read the transcripts and put before the Tribunal any matters therein with which he disagreed or took issue. At the outset of the hearing, the Applicant was asked if he agreed to this procedure and consented. The Tribunal adjourned at 2:30 pm on 12 October 2022 and resumed at 10:00 am on 13 October 2022, thereby affording the Applicant reasonable time to read the transcript and respond in any way he thought appropriate. On the resumption of the hearing the Applicant confirmed that he had no issues to raise in relation to the transcripts and that he stood by all the answers that he had given on that previous occasion.
In presenting its case in this fashion the Tribunal took the Respondent to mean it accepted the evidence given by other witnesses who appeared before the first Tribunal except to the extent that such evidence or testimony was specifically challenged or refuted by the Respondent in further specific submissions at this hearing.
In addition to the transcript material, the Tribunal in this hearing took evidence from the Applicant and his sister, Ms Alo which is referenced at the appropriate location in the reasons which follow.
Applicant’s personal and offending record
The Applicant is a citizen of New Zealand (Aotearoa) where he was born in 1977. Specifically, he is of Cook Islander descent. He first arrived in Australia in 1997 and has made several trips between Australia and New Zealand, his most current date of arrival being 10 April 2007. As a citizen of New Zealand, he was entitled to hold a Subclass 444 visa.
The Applicant has a lengthy criminal record both in New Zealand and in Australia.
In New Zealand he was convicted of at least 35 offences, commencing in September 1994 with a series of driving offences; continuing through a series of offences involving common assault, wilful damage, possession of cannabis plant, fighting in a public place, failure to answer police bail and concluding in September 2005 with an offence of driving while disqualified (3^rd or subsequent offence). It appears that sentences were imposed on him on a number of occasions to be served via periodic or home detention.[2]
[2] Remittal Bundle at 81-83.
His offending record in Australia commenced in May 2007, that is within five weeks of his most recent arrival in this country. Between May 2007 and August 2020, he was convicted of no fewer than 47 offences.[3] These include numerous and repeated driving offences (including multiple occasions of driving while disqualified or driving under the influence of alcohol/drugs); assault occasioning actual bodily harm, armed with intent to commit indictable offence, police pursuit, destroy property, larceny, common assault and offence against police officer.
[3] Ibid at 33-37.
As set out in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) the Applicant was twice sentenced to terms of imprisonment:
“9. On 31 October 2019, the applicant was convicted by Sutherland Local Court of the following offences:
(a) Drive motor vehicle during disqualification period – 1st off;
(b) Drive with middle range PCA – 1st of;
(c) Fail to appear in accordance with bail acknowledgement; and
(d) Police pursuit – not stop – drive recklessly – 1st off – T2 (the October 2019 convictions).
10. In respect of the October 2019 convictions, the applicant received an aggregate sentence of 14 months’ imprisonment commencing on 26 August 2019 and concluding on 25 October 2020, with a non-parole period of 10 months and 15 days. The October 2019 convictions related to an incident on 5 January 2018, which was outlined in the sentencing remarks of Magistrate Connell dated 31 October 2019.[4] In summary: the applicant whilst driving was directed to enter a site for breath testing; police sighted empty beer bottles in his car; the applicant accelerated out of the site when asked to show his driver licence; after a 4km police pursuit, the vehicle was stopped by the police and the applicant was arrested; he returned a breathalyser blood/alcohol reading of 0.101 and checks revealed he was disqualified from holding a driver licence until 2035.
[4] Ibid at 65-69.
…
13. On 24 April 2020, the applicant was convicted in the Sutherland Local Court of the following offences:
(a) Destroy or damage property <=$2000 (two counts);
(b) Armed w/I commit indictable offence;
(c) Assault occasioning actual bodily harm; and
(d) Larceny value <=$2000 (April 2020 convictions).
14. The April 2020 convictions arose from events that occurred on 17 November 2018. In summary: the victim (a stranger) was shopping and parked his car and asked the applicant if he needed assistance; the applicant got into the victim’s vehicle, held a knife towards the victim and told him he could kill him; he swung the butt of the knife at the victim’s head and split it open; and the victim asked the applicant to calm down but the applicant punched the victim twice. The applicant threatened to stab the victim if he did not turn off the car ignition, which the victim did and then exited the car and ran for his life. The applicant pleaded guilty to the offences.
15. In respect of the April 2020 convictions, the applicant was sentenced to 20 months’ imprisonment commencing on 1 April 2020 and concluding on 31 August 2021. The applicant appealed the convictions and, on 13 August 2020, the April 2020 convictions were varied to a sentence of 20 months’ imprisonment commencing on 1 December 2019 and concluding on 31 July 2021, with a non-parole period of 12 months commencing on 1 July 2019 and concluding on 30 November 2020.”
There are, however, a series of other offences which need to be taken into account, details of which appear in the various Police Fact Sheets before the Tribunal.[5]
[5] Ibid at 42-49.
4 October 2008
This incident involved common assault by the Applicant against a stranger:
“The Accused has mistaken the victim for someone else and said something which made the victim turn around.
The victim said, "I’m sorry?" as he was confused as to why the Accused was speaking to him. The Accused said, "Are you looking at me?" He replied, "No."
The Accused has then punched the victim in the side of the head with his right fist with such force that he fell to the ground immediately and felt pain in the area which he was hit.”[6]
[6] Ibid at 42.
5 August 2010
This incident involved acts of physical violence by the Applicant against Ms Vanessa Bonic with whom he was in a de facto relationship dating back some years and took place initially in a hotel where both had been drinking alcohol. The Police Fact Sheet contains the following information:
“Approximately 9pm victim BONIC gets up and leaves the table, when the accused picks up a glass off the table and throws it towards the victim where it narrowly misses her and smashes on the ground…
Victim BONIC begins to walk towards Railway Crescent at which time the accused grabs hold of her and in a bear like hug carries her back.”
The Manager of the hotel intervened whereupon:
“The accused grabbed hold of victim M around the throat region and pinned him up against the metal railing at which time he said, ‘I will rip your throat out’.
…
Victim BONIC appears to walk away from the accused when he grabs hold of her dragging her a short distance before lifting her up forceably (sic) throwing her into a chair.
…
A few minutes later victim BONIC and the accused were standing on Railway Parade opposite Burwood Plaza when victim W has walked past and observed the accused punching victim BONIC continually to numerous areas of her body, while she was screaming. As a result victim W has said, "Can you stop bullying the girl, if not I'll call the police". The accused did not respond.
Victim said to victim BONIC, "Do you need some help"?. Again neither the accused or victim replied. The accused began running towards victim and as a result victim started running east along Railway Parade towards Burwood Road. Victim turned left onto Burwood Road and entered the Avondale Hotel screaming for help.
The accused followed victim into the hotel where he has punched victim W to the right side of his face using a closed right fist. This has caused victim to feel immediate pain.”
In the process of arresting and restraining the Applicant, two Police Officers suffered minor injuries.[7]
[7] Ibid at 45-47.
19 December 2013
The Department received information from the Magistrate’s Court in Southport (Qld) which indicates that the Applicant entered a taxi cab when the driver was exiting it to get himself a coffee and demanded that the driver “take me home”. When the driver declined and walked away from the Applicant into the service station shop:
“The defendant has followed the victim into the store continually saying to the victim ‘Take me home’.
The defendant has continued to yell at the victim from while standing over the victim ‘you will take me, you must take me otherwise you will see what will happen to you’.
The victim has tried to walk away from the defendant to which the defendant has started pushing the victim.
The defendant has then grabbed the victim by the shoulders and pushed and dragged him through the store.
The defendant has then caused the victim to fall across shelves located near the shop entrance by grabbing his shoulders and dragging him. The defendant has then felt what he believes was a bite to his right index finger. The victim has kicked the defendant between the legs causing the defendant to let go.”[8]
[8] Ibid at 48-49.
In parallel with the Applicant’s offending record, it is necessary to consider his record in relation to dealings with the Department (in its various manifestations).
On 12 February 2009 the Department wrote to the Applicant (who was then in detention at the Junee Correctional Centre) to advise him that the Department had been made aware of his recent conviction but that:
“At present, no consideration is being given to cancelling your Class TY, Subclass 444 Special Category (Temporary) visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars re-entering Australia.”[9]
[9] Ibid at 137.
The Applicant was thus aware that his visa might be cancelled should he engage in further offending activities.
Nevertheless, the Applicant continued to offend and in 2010 was convicted of a number of offences including common assault, resisting police and damage/destroy property.[10]
[10] Ibid at 36.
This led to the Department again writing to the Applicant (on this occasion at Long Bay prison) on 22 September 2011 indicating that:
“Your visa is to be considered for cancellation under subsection 501 (2) of the Migration Act 1958 (the Act), on the grounds that you appear to have a substantial criminal record. This does not mean that your visa will necessarily be cancelled when a decision-maker considers your case. The decision-maker will take all relevant available information into account when making the decision about your visa.”[11]
[11] Ibid at 219.
The Applicant availed himself of the opportunity to make representations to the Department on 12 October 2011, completing a Personal Details Form and attaching a personal statement and letters of support from members of this family.[12] In his own statement he wrote:
“Facing the reality of being deported has forced me to reflect and address my issues, though I have made some poor decisions and choices it is not only myself that I have hurt, but the people that mean the most to me. I am reminded daily of why I am in jail, and I have to live with my mistakes and lack of judgement.
I have learnt that my future is all about Vanessa and our children, not behind bars. I have made a promise to Vanessa, the children, and myself which is to never put them through this ever again.”[13]
[12] Ibid at 234-272.
[13] Ibid at 245.
After consideration of these representations the Department decided not to proceed with the cancellation of the Applicant’s visa but gave him a formal warning in the following terms by letter dated 21 November 2021:
“After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class TY Subclass 444 Special Category (Temporary) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[14]
[14] Ibid at 139 – emphasis in original.
The Applicant can have been in no doubt about the potential consequences of any further or reoffending and had acknowledged as much in his own representations. Nevertheless, his offending behaviour continued and in 2019 he was convicted of the further offences outlined above.

This led to the mandatory cancellation of the Applicant’s visa on 20 December 2019.
The basis of any review
The Act provides that where a non-citizen fails the character test, their visa is subject to mandatory cancellation. As already noted, the imposition of a term of imprisonment of more than 12 months is taken to establish that the character test has been failed (s 501(3A)).
Once a visa has been cancelled because of a failure to meet the character test, it may be reinstated (the cancellation decision may be revoked) if there is “another reason” to do so (s 501CA(4)(b)(ii)).
The decision before the Tribunal
The Tribunal must make a simple determination – whether the cancellation of the Applicant’s visa the “correct or preferrable”[15] decision to be made on the basis of the evidence before the Tribunal.
[15] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister[16] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[17]
[16] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[17] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (s 499(1) of the Act) which are binding on decision-makers (s 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 Ministerial Direction Number 90 (MD90) came into effect, and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
Ministerial Direction 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[18]
[18] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [19] to arrive at a final determination.
[19] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. The Preamble to the Direction, states clearly as an “Objective”: (emphasis added):
5.1(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[20]
primary considerations
[20] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community and Family Violence
Under this criterion the Tribunal must give specific attention to:
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters.[21] Regard must also be had to crimes committed against government representatives (including police)[22] undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour[23] and any cumulative effect of repeated offending.[24] In addition, the Direction considers the provision of false or misleading information to the Department a serious offence.[25]
[21] MD90 at 8.1.1(1)(a).
[22] MD90 at 8.1.1(1)(b)(ii).
[23] MD90 at 8.1.1(1)(d).
[24] MD90 at 8.1.1(1)(e).
[25] MD90 at 8.1.1(1)(f).
The Direction is very specific in designating as “serious” (at 8.1.1(1)(g)):
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of warning should not be considered to be in the non-citizen’s favour).
Discussion
“Seriousness” is a matter of degree and the Macquarie Concise Dictionary[26] uses the term “not trifling”. The Tribunal accepts the Respondent’s submission that the Applicant’s offending record demonstrates several serious offences have been committed. The Applicant has offended against vulnerable people, against women and against police officers, all categories of victims specifically designated in the Direction as indicating a level or degree of seriousness. Innocent third parties have been subject to random physical pain-causing assault. People have been threatened with knives.
[26] 7^th edition, 2017.
The Tribunal also regards it as “serious” that the Applicant has committed numerous driving offences, including repeated driving while disqualified and driving under the influence of drugs/alcohol and notes that there is a considerable body of Tribunal[27] and Federal Court[28] decisions which identify motor-vehicle and driving offences as “serious”. In his sentencing remarks, Magistrate Connell, dealing with a traffic offence which resulted in a police pursuit when the Applicant attempted to leave a random breath test site, as “quite the serious example of that type of offence”.[29]
[27] Ahmed v Minister for Immigration and Border Protection [2018] AATA 4458; Nguyen v Minister for Immigration and Border Protection [2017] AATA 1157; NSWQ and Minister for Immigration and Border Protection [2016] AATA 373.
[28] Grima and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 761; JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 2021] FCA 762.
[29] Remittal Bundle at 68.
The Tribunal notes that the Applicant’s offending has been repeated (over 75 offences) and has increased in seriousness from lesser traffic offences to serious assaults.
The Tribunal is also enjoined by the Direction to take note of any offences committed while in custody or detention. In this respect it notes that the Applicant failed two urinalysis tests (cannabis detected) while in prison[30] and that he to the subject of a number of incident reports while in the Villawood Detention Centre.[31] While noting these incidents in Villawood took place, the Tribunal also took note of the answers given at the hearing in relation to them and upon consideration regards them as trivial matters of no moment. The Applicant also falsely stated on an Incoming Passenger Card that he had no criminal convictions.[32]
[30] Ibid at 764.
[31] Respondent’s Tender Bundle at 8-12.
[32] Remittal Bundle at 289.
Finally, it must be noted that the Applicant has received not just one, but two prior warnings (in 12 February 2009 and 21 November 2011) about the potential consequences of re-offending and has chosen, in effect, to ignore both. Some 15 offences were committed after the 21 November 2011 letter.
Conclusion
The Applicant’s record of offending is towards the higher end of the spectrum of seriousness as assessed against the specific criteria in MD90.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[33] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[33] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[34]
[34] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[35]
[35] Ibid.
Discussion
Given the Applicant’s offending record and his repeated offending after receiving formal warnings, despite his written promise not to re-offend (given in his letter of 12 October 2011), his assertion that there would be less risk of re-offending because “I’m getting too old now, my grandchildren and my family need me at home”[36] and his repeated abjuration at the Tribunal hearing of any propensity for further offending, the Tribunal has little confidence that the Applicant will not re-offend. He has demonstrated, on more than one occasion a contempt for the law and an unwillingness to change his offending behaviour. One such piece of evidence which weighs against the Applicant is that he claimed, in an interview with Departmental officers in October 2011 that he had completed a 12-week Traffic Offender’s Programme,[37] but he nevertheless continued to commit numerous subsequent traffic offences.
[36] Remittal Bundle at 109.
[37] Ibid at 229.
The Applicant has raised the question of the extent to which his offending was a result of, occasioned by, or enhanced by his use of alcohol and illicit substances. Magistrate Mabbutt on 24 April 2020 in the Sutherland Local Court referred to the Applicant’s self-reported use of “ice”[38], cannabis and alcohol and that his mental health was affected by his situation of homelessness.[39]
[38] Crystal methamphetamine.
[39] Remittal Bundle at 59.
Ms Clara Fritchley prepared a Psychological Report in relation to the Applicant for his solicitors dated 20 April 2020. She reported:
“Mr Ngatupuna has never engaged in treatment for his drug and alcohol use. He said that for many years he didn't think he needed it and normalised his dependence on drugs and alcohol. He acknowledged that his substance use has caused him many problems in his life and he expressed feeling open to treatment, however he had little idea of what this would involve. It appears that Mr Ngatupuna has suffered from an alcohol use disorder and a cannabis use disorder for much of his life and in more recent years an amphetamine use disorder as outlined in the DSM 5.”[40]
[40] Ibid at 490, Report at [25].
There is no evidence that the Applicant has ever sought any other assistance to deal with his substance abuse issues. In one of his statements, he writes:
“This last time around in jail I was given the opportunity for a reality check and took advantage of programmes at the Macquarie and Clarence Corrections named equips, addictions and foundations and these programmes address ongoing problems, addictions, issues in your life.”[41]
[41] Ibid at 120.
However, the NSW Department of Corrections report of 1 July 2020 indicates that the EQUIPS Foundation and EQUIPS Addiction programmes were both “abandoned” due to the Applicant’s ineligibility for participation.[42]
[42] Ibid at 742.
Risks of re-offending can be lessened by participation in programmes and treatments available in NSW Correctional Centres where the need for intervention has been identified or mental/emotional health issues have arisen. In relation to this the Tribunal notes the Respondent’s submission in the following terms:
“Ms Fritchley has opined that: the applicant’s emotional symptoms were consistent with diagnoses of borderline personality disorder and major depressive disorder and had resorted to drugs and alcohol to cope; the applicant required ongoing treatment for his mental health disorders and noted he had not engaged in treatment previously; and with “intensive treatment” his risk of recidivism will be significantly reduced. The applicant’s clinical records indicate that he failed to attend three counselling appointments consecutively (reported on 16 July 2021), declined to engage in a mental health re-screen and K10 on 29 November 2021 and also declined to attend a booked 18-month mental health review with a psychiatrist on 28 June 2022. The clinical records indicate the applicant has been prescribed Melatonin and Mirtazapine as mental health medications. It is noted the applicant attended telephone counselling on 23 August 2022 for stress management. There is otherwise no evidence that the applicant has engaged in regular mental health treatment, let alone undertaken “intensive” treatment for any mental health conditions. Nor is there any evidence that shows the applicant has made any effort to pursue ongoing treatment and implement management strategies to assist in reducing the risk that he might again engage in drug use and criminal conduct.”[43]
[43] Respondent’s SFIC at [65] – citations omitted.
In his evidence to the Tribunal the Applicant was asked directly if he had sought to undertake any courses or forms of intervention to deal with his substance abuse or mental health issues and indicated that he had not, nor had he perceived the need to do so, over and above or since the uncompleted courses in previous correctional centres.
In his evidence at the first Tribunal hearing the Applicant stated:
“So, is that correct, that you haven't 30 had treatment for the drug and alcohol use?---Yes. No, no, treatment, that's why they put me - they wanted me to see a psychiatrist to see if I needed treatment because things weren't right inside my head, you know, there - and at the time I just wasn't thinking straight. So, yes - no, no I didn't have treatment. They were thinking of putting me on some treatment but I don't 35 think they - well, we didn't get further enough into it. I got moved, because that was when I was at Clarence.
Yes?---I seen the psych there.”[44]
[44] Transcript of hearing, Ngatupuna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, (Transcript) on 22 June 2021 at 49.

At the hearing before this Tribunal, he confirmed that he had not sought or received any treatment for any of his mental health or substances abuse issues subsequently.
Nevertheless, in his oral testimony the Applicant made a great deal of the claim that he had genuinely learned his lesson, that he was now fully conscious and ashamed of his past behaviour, that he understood the potential consequences of his previous offending and that he had entirely changed his outlook on life and developed a new determination to avoid repetition of his past behaviours. The Tribunal took these to be genuine expressions of remorse and intention, but notes that the Respondent, in also adopting this position warned that little reliance could be placed upon it and there was no guarantee that genuine intention would turn into demonstrable behavioural change.
Were the Applicant to continue his offending behaviour there is a risk to the Australian community, both in terms of individuals who might be the subject of his offending but also in relation to the broader risk to the community from his driving habits. A recent decision by Abraham J in the Federal Court made clear that:
“What constitutes a danger to the Australian community stands to be determined on the facts and circumstances of individual cases. A person may pose a danger to the community by harming individuals within that community.”[45]
[45] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055 at [59].
Conclusion
On the basis of the Applicant’s past conduct and his evidence before the Tribunal, the Tribunal cannot be satisfied that the Applicant will not reoffend. Such re-offending would constitute a threat to the Australian community. However, the Tribunal does accept that the risk of reoffending is in the low to medium range of possibilities, not least because the Applicant’s age and state of health, especially in terms of his reduced mobility (discussed below) are additional mitigating factors.
Taken as a whole, this criterion counts moderately against the Applicant.
Family violence
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend 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.
There is no doubt as to where this Tribunal stands in relation to matters of family or domestic violence.
In XNBW Senior Member Illingworth described domestic violence as a "scourge", a "plague and a "pernicious blight" upon the community.[46] I explained in Mendoza that:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[47]
[46] Ali and Minister for Home Affairs [2018] AATA 2512 at [113]; R v JT [2007] NSWDC 377 at [1]; and Slynt v Slynt [2017] FamCA 812 at [1] respectively.
[47] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
It is important to emphasise that family violence, according to the Ministerial Direction encompasses far more than simple acts of physical violence or aggression. The Direction (at 4.1) makes it clear that the term extends to matters such as “stalking”, “repeated derogatory taunts” or “intentionally damaging or destroying property” as well as the exercise of coercive control.
In Vu the Full Federal Court drew attention to the decision of the Supreme Court of the United Kingdom which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.[48]
[48] Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90 at [55] citing Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433 at [156].
It is also the case that the Direction fails to provide a clear definition of who or what may constitute a “family member”. However, the Federal Court has made clear that this term is to be given wide interpretation:
Given the absence of any explicit definition of the expression in Direction 90, the seriousness with which “family violence” is treated in Direction 90 and the inclusive definition of “members of a person’s family” in s 5G(2) of the Act, I am satisfied that the expression “member of the person’s family” in Direction 90 should not be narrowly construed and should not be limited to close relatives and de facto partners of the non-citizen. Rather, in my view the expression is apt to also capture persons that might be living together in a household, providing companionship and emotional support to each other, sharing expenses or otherwise being financially dependent upon each other and in a relationship of mutual affection and obligation.[49]
[49] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 per Halley J.
There are three distinct instances of family violence offences, each committed by the Applicant against his de facto partner Vanessa Bonic. The incident of 5 August 2010 has already been outlined above at paragraph 15 of this decision.
In March 2013, at a time when the Applicant and Ms Bonic were no longer living in the same residence, the Applicant went to her home where he engaged in threatening behaviour towards her, verbally abusing her, calling her a slut and telling her that he was going “to smash her white teeth in” and proceeded to shake the door frame threating to smash it. These acts took place while the Applicant was consuming alcohol (the Queensland Police report refers to “numerous bottles of beer”) and in front of Ms Bonic’s two children. The Applicant made threats “to burn the house down”. It does not appear that any charges arose from this incident, although the Police subsequently applied for the issue of a Domestic Violence Order.[50]
[50] Remittal Bundle at 383-385.
A similar incident occurred in April 2018. Once again, the Applicant and Ms Bonic were separated after having temporarily resumed cohabitation and Ms Bonic returned to their shared home to collect possessions. A NSW Police report states:
“While the Victim was collecting property from the address an argument began between Victim and the Defendant. The argument was in relation to the recent separation. Soon after the Defendant struck the Victim in the chest. At this time the Defendant was standing within the doorway of the bedroom and the Victim was situated inside the bedroom. The Defendant struck the Victim using an open hand. The Defendant's open hand connected with the Victim's left upper chest. The contact caused the Victim to stumble backwards. The Victim felt immediate pain to her upper chest area which lasted for two days and later resulted in bruising to the area. . After the Assault the Victim's Dog came to her Defence and intervened. The argument soon ended with no further incidents of assault. The Victim fearful for her safety left the address without her property.”[51]
[51] Ibid at 555.
Discussion
In evidence to the Tribunal the Applicant described his relationship with Ms Bonic as “toxic”. He was asked about the current state of the relationship which had been on/off since approximately 2006 or 2007. The Applicant advised that the last time he had any direct contact with Ms Bonic was when she visited him in the Villawood Detention Centre around November 2020 and that they had not spoken since at least March 2022. He told the Tribunal that Ms Bonic suffered a variety of “mental health” and “bipolar” problems and had currently cut off all communications with him and any members of her family. She was apparently residing with her son Lachlan but in an environment where they fought frequently and failed to communicate.
When asked about his future intentions in regard to Ms Bonic, in reference to whom in letter dated 15 March 2021 the Applicant wrote “we love each other very much and need other (sic) to get thru all this”,[52] the Applicant told the Tribunal that “I don’t know what to think” in terms of any future relationship. It was the Applicant’s opinion that Ms Bonic “needs a lot of help” to resolve her mental health issues but had no expectation of the immediate or early resumption of any relationship with her.
[52] Ibid at 148.
As part of the evidence presented to the first Tribunal hearing (June 2021) and the Federal Court (March 2022) the Applicant submitted letters of support from Ms Bonic in which she describes him as “a gentle man in nature, a great father, hardworking and a treasured part of our family”.[53]
[53] Ibid at 123-124.
Ms Bonic gave evidence to the first Tribunal[54] and her representations were referred to in the judgement of Bromwich J quashing the decision of the first Tribunal.[55]
[54] Transcript dated 22 June 2021 at 69.
[55] Ngatupuna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 390 at [13].
In her testimony to the first Tribunal Ms Bonic denied that the Applicant had assaulted her in the 5 August 2010 incident, nor can she recall him throwing a glass at her.[56] She also gave a substantially qualified version of events on the 23 March 2013 incident and could not recall the Applicant making specific threats against her.[57] In her testimony Ms Bonic made at least two quite clear statements to the effect that the Applicant had never behaved in a physically violent manner towards her: “he’s never put a hand on me in the 13 years we’ve known each other”[58] and when asked, “…so you still maintain that you have never been the victim of any domestic violence perpetrated by Johnny?” she replied “Correct”.[59]
[56] Transcript dated 22 June 2021 at 72.
[57] Ibid at 72-73, 75.
[58] Ibid at 73.
[59] Ibid at 76.
It does not appear from the transcript that the incident of 6 April 2018 was raised with Ms Bonic.
At the first Tribunal hearing the Minister’s then representative took the Applicant himself though the allegations of his domestic violence behaviour in some detail.[60] As the Applicant was not questioned in detail about these incidents at this hearing, the Tribunal must rely on some of his answers given previously. At that time the Applicant was still in a relationship with Ms Bonic which he described as “volatile” but “not violent”.[61] In his evidence the Applicant agreed that the incidents of August 2010 and March 2013 took place but he gave very different versions of those events compared with what appears in the Police Reports and, to all intents and purposes agrees that there were incidents of arguments between himself and Ms Bonic but no acts of physical violence.
[60] Ibid at 51-56; 29-34.
[61] Ibid at 55.
On this occasion Ms Bonic was not called to give evidence and given that the relationship between the parties appears to have broken down and is now described by the Applicant as “toxic”, it is problematic for the Tribunal to determine what weight should be given to Ms Bonic’s earlier written submissions or oral testimony. This is particularly the case given the strictures of the Federal Court in PGDX requiring that the submissions of the victim of domestic violence in subsequent support of their aggressor, be given due agency and that where “[t]hat information was available. It was not open to be ignored.”[62]
[62] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [83].
In the absence of the Applicant being cross-examined on these matters at this Tribunal hearing, and given the statements in the transcript of the previous Tribal hearing from both the Applicant and Ms Bonic, together with the summary dismissing these versions presented to the first Tribunal by the Minister’s representative, the only safe course of action for this Tribunal is to note that the Applicant was convicted in December 2010 of a series of offences which included acts of family violence against Ms Bonic. The Tribunal is prohibited from “going behind” any such convictions[63] and so accepts that the Applicant has been convicted, on at least one occasion of an offence involving family violence. It also accepts that there were numerous domestic arguments between the Applicant and Ms Bonic but the degree to which they involved acts of physical violence is unclear. Although, on at least one occasion the Queensland Police applied for and were granted a Domestic Violence Order which was subsequently varied at Ms Bonic’s request.[64] The extent to which acts of family violence were committed by the Applicant, other than in relation to the matter in which a conviction was recorded, is simply unclear.
[63] Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 2021.
[64] Transcript dated 22 June 2021 at 32.
Conclusion
However, it does not matter if it was one incident or more than one, any act of family violence is reprehensible, unacceptable and must count against the perpetrator. Even if the other incidents did not involve physical violence, they certainly involved levels of intimidatory behaviour and verbal abuse. It is a clear requirement of the Direction and the practice of this Tribunal and the Courts to take such matters seriously.
This criterion must weigh significantly against the Applicant.
The best interests of minor children
MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[65]
[65] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
In his submissions the Applicant has identified two minor children with whom he claims a special relationship. The Applicant himself has four biological children, each of whom is now an adult. At least two of those children have children of their own but at no stage has the Applicant provided details for them. He has not established their names or ages, and hence allow this Tribunal to determine whether they are minors – although that would be the presumption given the Applicant’s own age (45 years). The failure to provide such details in either the Applicant’s Personal Circumstances form[66] or any of his other representations was noted by the Delegate in his decision[67] and means that no meaningful consideration can be given to aspects of their interests or welfare vis-à-vis the Applicant.
[66] Remittal Bundle at 241.
[67] Ibid at 26.
However, the two minor children identified by the Applicant are the children of the son of his sometime/former partner Ms Bonic. Her son Rakai (whom the Applicant regards as his step-son, although the relationship with Ms Bonic is de facto) has two children, AR (born April 2019) and KK (born March 2020). The dynamics of this family appear totally dysfunctional. The Applicant told the Tribunal that Rakai (who is aged 21 years) is generally unsuitable as a parent and that his relationship with the mother of the children (Ms Mini Monta) is one of hostility. Indeed, after the couple broke up, the Applicant says that Ms Monta got Rakai in trouble with the Police leading to him being imprisoned. Subsequently Ms Monta was imprisoned for stabbing Rakai.[68] At some stage the two infant children were in Rakai’s custody, but they were then removed into the custody of the Department of Community Services NSW (DOCS) and now appear to be back in the custody of Ms Monta. The Applicant described the family’s living conditions as “disgusting” and “filthy” and indicated the if released int the community he would seek custody of his step-grandchildren, although he says that this would be resisted strongly by Ms Monta.
[68] Idem.
A number of observations must be made. The first is that the prospect of the Applicant ever being granted custody of the step-grandchildren is seems unlikely given all the circumstances. Secondly it is clear that the Applicant has had virtually no meaningful contact with either of the children concerned. Although he says he was present at the birth of AR, he was taken into custody within four months of that child’s birth. KK was born while he was in custody and has never seen or had any physical contact with the Applicant. The Applicant has played no meaningful role in the lives of either child, neither parental nor emotional or financial. Thirdly it is clear that there are other persons (albeit that they may be unsatisfactory in this role) who have primary parental responsibility for the children who, as noted have also come within the custody of DOCS on at least one occasion.
The Tribunal does not doubt that the Applicant loves these two children and that he is concerned for their welfare, but there is no real evidence that their best interests would, in any way, be prejudiced by the Applicant being removed from Australia. The Tribunal does not find that just because there is some connection between an applicant and minor children it is always in the best interests of those children for an applicant’s visa cancellation to be revoked.[69]
[69] QGMJ v Minister for Immigration and Border Protection [2017] AATA 1537.
While the Applicant had not identified any other minor children whose interests he claimed would be affected by his potential removal from Australia in previous submissions, it became apparent that there were such children during the course of this hearing.
The Applicant’s sister Julie Alo gave compelling and persuasive evidence in support of her brother. As part of her testimony, she referred to the interests of her own three daughters, two of whom, RL (aged 16) and ES (aged 15) are minors. Ms Alo and the three children travelled from Newcastle to attend the Tribunal hearing and the daughters were present throughout the entire first day. Ms Alo gave evidence that the daughters were deeply attached to “their favourite uncle” and that they (together with the other members of her family) would be “devastated” by his removal. It was apparent to the Tribunal observing the interaction of members of the family that there was a close bond and that the minor children did have significant attachment to and regard for the Applicant. What of course is curious is that the Applicant himself has never sought to advance the interests of any of these nieces of his in support of his application and had not the Tribunal itself, in pressing Ms Alo about the matter, revealed this relationship, it might never have been an issue for consideration.

The Tribunal notes that the Federal Court, in its decision quashing the decision of the first Tribunal made reference to the interests of both the Applicant’s partner (Ms Bonic) and that of her intellectually impaired son who had been supported by the Applicant to some extent.[70] Given that this son is an adult (Taigan, aged 30 years) and that this relationship is no longer on foot, this is not a matter of relevant for this Tribunal’s consideration.
[70] Ngatupuna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 390 at [25].
Conclusion
To the extent that it is in issue the Tribunal accepts that the best interests of two minor children, being the nieces of the Applicant would be for the Applicant to be allowed to remain in Australia, although given that the children are otherwise members of a secure and loving family with and enjoy full parental support.
This criterion is assessed as counting only moderately in favour of the Applicant.
The expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia;
(b)where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
(c)non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[71] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[71] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[72]
[72] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
Discussion
Judicial authority has made it clear that it is not for the Tribunal to impose its own assessment of the expectations of the Australian community over and above the clear direction of government/public policy in this regard. Clearly the Applicant’s repeat offending and his re-offending after receipt of formal warnings are serious considerations. There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
Conclusion
This criterion weighs significantly against the Applicant.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[73]
[73] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[74]
[74] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[75] and more clearly supported by Wigney J in FHHM. [76]
[75] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[76] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[77] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[78]
[77] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[78] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[79]
[79] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[80]
[80] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said:[81]
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
Non-Refoulment obligations
[81] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Discussion
There are no non-refoulment issues arising in these proceedings.
Conclusion
This criterion counts neutrally as far as the Applicant is concerned.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen's age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The comparator here is not the difference between services or supports available in Australia as compared with those in New Zealand, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place. In any event, there is no reason to believe that health services, or access to them, are in any way lesser in New Zealand than in Australia. The Cook Islands themselves are well provided with health services (Te Marae Ora Ministry of Health).
Discussion
The Applicant has identified a number of health matters which must be taken into consideration. Some years ago, the Applicant had a full replacement of his right hip, and he has been diagnosed as suffering from advanced osteoarthritis. He needs a full replacement of his left hip and has been on a waiting list for this operation since at least April 2021.[82] In the meantime the Applicant suffers a degree of compromised mobility and requires constant medication for pain management. Although there is no question that suitable treatment would be available for him in New Zealand it is conceded by the Respondent that the Applicant would suffer some impediment were his removal from Australia to cause prolonged delay in accessing necessary surgery.
[82] Respondent’s Tender Bundle at 1.
There was no evidence before the Tribunal in relation to the Applicant’s mental health, other than that to which reference has already been made. The Applicant himself did not identify any continuing mental health problems for which he was seeking or thought he needed treatment. Similarly, issues of the management of substance abuse (which clearly fit into the overall suite of health issues)[83] were not further discussed, although it did not appear from the conduct of the hearing that the Applicant continues to face any significant current challenges in this regard.
[83] Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1126 at [12]-[15].
The Applicant faces no cultural, linguistic or social barriers if returned to New Zealand where he grew up. The Applicant is part of a Cook Islands family and spent some of his formative years living there.[84] He told the Tribunal that he had a long-term intention to return to the Cook Islands, which he described as “home” and that other members of his family now in both Australia and New Zealand had similar intentions. He advised the Tribunal that his (foster) parents owned considerable land in the Cook Islands, that there was already a family home there occupied by relatives of his, with another under construction. He described the Cook Island to the first Tribunal as “Paradise”. His qualification was to the effect that while he intended to return at some stage, “the time just isn’t right for me at the moment.”[85]
[84] Transcript dated 22 June 2021 at 22.
[85] Transcript dated 22 June 2021 at 18.
The Applicant is a highly qualified scaffolder and has worked extensively in that industry for many years. He managed a team of subcontracted scaffolders for a company associated with a friend of his. His qualifications and work history in this area are attested to and supported by a reference from Mr Geoff Houghton, General Manager of Direct Scaffolding.[86]
[86] Remittal Bundle at 122.
Although it is not likely that he would be able to find work in this industry in the Cook Islands there are no reasons that he would not be able to work in this industry in New Zealand, although he rightly raised the question of New Zealand recognition of his Australian-based trade qualifications. The Tribunal also notes that it would be more difficult for the Applicant to work on scaffolding in a physical capacity (as distinct from some managerial role) as a result of his osteoarthritis.
It goes without saying that separation from his family in Australia would be a considerable impediment and although he has extensive family connections in both New Zealand and the Cook Islands[87] and maintaining communication between Australia and New Zealand is not difficult, this would doubtless severally impact on his emotional or psychological health and wellbeing.
[87] Ibid at 108.
Conclusion
The extent of the impediments which would be suffered by the Applicant are quite significant and as a result this criterion counts significantly in his favour.
Impact on victims
Sub-paragraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
Discussion
Although there have been a number of direct victims of the Applicant’s offending (the taxi driver, the stranger in the car park, Victim W, the injured police officers) there is only one clearly identified victim who has provided any direct addressed statement and evidence relevant these proceedings, namely Ms Bonic.
In written submissions and in her testimony to the first Tribunal Ms Bonic made it very clear that she was anxious for the Applicant to remain in Australia and that she would suffer considerable impediment, distress and disadvantage should he be removed. As made clear by the Court in PGDX these representations cannot be ignored.
However, the Tribunal does not think that it can simply carry forward this evidence into current considerations without some qualification and degree of concern on its part.
Confusion is added to this because of certain documents included in the Respondent’s Remittal Bundle which relate to alleged correspondence between Ms Bonic and the Department’s National Character Consideration Centre in which it appears that Ms Bonic may have withdrawn her support for the Applicant.[88] This point was averted to by the Minister’s representative in his final submissions in response to the Tribunal’s inquiry. To the extent that this issue was not fully canvassed at the hearing nor put directly to the Applicant, it will not be relied upon by the Tribunal.
[88] Ibid at 125-129.
In the absence of any contemporary evidence from Ms Bonic and in the light of the Applicant’s own description of the current state of their relationship, it is safer if no conclusions were to be drawn and the Tribunal does not do so. In short there is no contemporary evidence that Ms Bonic stands by any of her earlier statements or representations to the Minister.
Conclusion
In the absence of any contemporary evidence on this matter the Tribunal assesses that this criterion counts neutrally as far as the Applicant is concerned.
Links to the Australian Community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
Paragraph 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests.
Discussion
In their initial assessment, the Minister’s delegate considered the impact on a number of people or “family members” were the Applicant to be removed from Australia.[89] Some of these were also considered by both the first Tribunal and the Federal Court. However, a large number of these are no longer people or parties whose interests should be taken into account.
[89] Ibid at 27-30.
In the first instance the relationship between the Applicant and Ms Bonic has terminated, demonstrates no likelihood of resumption and cannot be assessed by the Tribunal.
Likewise, the relative interests or impacts on either of her biological children who no longer have any direct relationship with the Applicant cannot be evaluated properly. The Tribunal notes that both of Ms Bonic’s children (Rakai and Tiarne) gave evidence before the first Tribunal and each was very clear that they valued the role which the Applicant had played in their lives and were supportive of him remaining in Australia.[90] Attempts were made by both the Applicant and the Tribunal Officer to contact each person to give evidence at the current hearing but none of those contacts was successful.
[90] Transcript dated 23 June 2021 at 87-97.
This leaves the Applicant’s parents, brothers and sisters (and their children) together with his own biological children to be considered.
The Tribunal has already canvassed the evidence provided by the Applicant’s sister Julie Alo and does not need to repeat its findings.
The Applicant identified that, apart from Julie he has his birth parents, a brother (Jason) and a sister (Sandra) residing in Australia.[91] There is also mention of a sister-in-law.[92] No evidence was presented by them or in relation to them. There is an entry in a NSW Department of Corrective Services Case Note to the effect:
“Both parents are still married… Hasn't had contact with them since coming into gaol as he hasn't informed them of his whereabouts. Claims that he doesn't want to upset/stress them but said that he had a loving, supportive relationship with both parents growing up and before gaol. Has 3 siblings (Jason, Julie and Sandra) all live within Sydney and also has a good relationship with them.[93]
[91] Remittal Bundle at 108.
[92] Ibid at 241.
[93] Ibid at 699.
In these circumstances it is difficult for the Tribunal to make any finding about the impact upon these family members other than at the highest level of generality based on the Applicant and Ms Alo’s claims that they are a close and supportive family.
Next, we have the Applicant’s own biological children. He has four adult sons, none of whom he lists on either of his Personal Circumstances Forms.[94] His eldest son (Whetharha Simmons) lives in New Zealand. The next two boys, Ezra and Tekopere Simmons lived initially with their mother in New Zealand but at some stage came to Australia; both live in Melbourne and both are married with their own children. A fourth son, Makai Chedyn (by a different mother) lives in Sydney.[95] Again this information was really only forthcoming as a result of questioning by the Tribunal and at no stage did the Applicant seek to make reference to them, to call evidence from them or to assert that they would suffer any detriment were he removed from Australia.
[94] Ibid at 108 and 241.
[95] Ibid at 244.

In this respect, the only meaningful and contemporary evidence before the Tribunal is that of Ms Alo, and any other conclusions about the strength of the Applicant’s ties to Australia via family members must be entirely speculative.
In relation to specific matters outlined in the Direction, it is the case that the Applicant has lived in Australia consistently since 2007 and prior to that had made several short-term visits totally a little over 12 months cumulatively.[96] The Applicant has thus lived less than half his life in Australia. He also commenced offending within a few weeks of his arrival in 2007.
[96] Ibid at 141-142.
It is true that the Applicant has a solid working history in Australia and has been an employer and economic contributor. He has provided positive references from former employers or people involved in the scaffolding industry and from personal friends.[97] He has helped other people with their career development.
[97] Ibid at 122, 132, 254.
The Applicant also told the Tribunal that he had been the organiser of a Cook Island music and dance troupe (with a Diploma of Fine Arts) which performed at various community events and on cruise ships.
Conclusion
The Applicant has significant ties to Australia through members of his family who reside here and has made some contribution to the community through both his employment and cultural activities. However, in relation to business interests, these cannot be taken into account as the Direction qualifies this criterion by limiting it to instances where major projects or important services are involved.
Nevertheless, this criterion weighs in favour of the Applicant to a significant degree.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[98]
[98] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[99]
[99] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “It is, however, improbable that Parliament intended for that broad discretionary power to be confined”[100] to only those representations.
[100] Ibid at [23].
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[101]
[101] Ibid at [70].
The principal consideration which arises in this respect is the repeated request by the Applicant to be given a “second chance”, taking into account all the circumstances of his case.
In his submission to the first Tribunal, he said (and repeated these sentiments to the same effect before this Tribunal):
“I mean, yes. I’m not getting any younger. I know it’s going to be a hard decision to make, but I’m telling you, if you give me the chance to prove myself to the community that I’ve definitely a changed person and I can make good of this, you know, I can do this. I’ve done it before. And now equipped with the right tools that I’ve got from all these programs and courses, the things that I’ve learnt that definitely going to benefit me and help me through my journey of life. I just going to keep working hard to support my family, look after my family, look after my grandkids.”[102]
[102] Transcript dated 22 June 2021 at 17.
Neither the Australian community, nor this Tribunal, is unsympathetic to the idea of giving people a second chance.
At the end of the day, Australia is after all, a nation built upon the principle of a second chance. The Tribunal cannot think of a principle so uniquely Australian. Indeed, it is fundamental to what can properly be described as our national character: the idea that, except in the most extreme of circumstances, everyone is entitled to a second chance. Such a principle was the very raison d’etre for the dispatch of the First Fleet on 13 May 1787 and those which followed them.
In a context only marginally different from the case now before it, this Tribunal stated:
Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned. Persistent disregard of warnings[103] about the need for compliance with mandated programmes and wilful failure to take rehabilitative opportunities offered must be regarded as fatal to applications such as this. Persistent refusals to accept life-lines when offered cannot be ignored.[104]
[103] Ferreira and Minister for Home Affairs [2018] AATA 2599 at [89]-[91].
[104] Dinkha v Minister for Home Affairs [2018] AATA 3037 at [113].
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[105] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in migration cases should be considered.
[105] [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.[106]
[106] [2016] AATA 390 at [23].
The Tribunal is also conscious of the exhortation of the Chief Justice in Hands to be fully aware of the impact of the decisions which it makes on the lives of real people, both applicants and their families.[107]
[107] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
Finally, the Tribunal notes that the humane aspects of the administration of the Migration Act was remarked upon by Deputy President McMahon emphasising that: “there would be a general expectation in the community that the Act would be administered fairly and humanely.”[108]
[108] Leha v Minister for Immigration [2000] AATA 1054 at [34].
Nevertheless, there is also an important matter of public policy which turns on the question of how individuals respond to being given a second chance and what they do with it. In this instance the Applicant was treated “fairly and humanely” by the Minister on two separate occasions. On each he was warned, after each he was “forgiven” and in after each he continued to offend. Not only has the Applicant had a second chance, but he has also had a third – what he now seeks is a fourth.
For the Tribunal to ignore the explicit terms of the Ministerial Direction[109] as they relate to the seriousness of re-offending after receipt of formal warnings would not be consonant with its responsibilities as part of the spectrum of “good government” clearly expected of it.[110]
[109] MD90 at 8.1.1(1)(g).
[110] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307 at 334-335.
The appeal for a “second chance” must, on this occasion fall on deaf ears.
Conclusion
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria:
(a)protection of the Australian community weighs moderately against the Applicant;
(b)family violence considerations weigh significantly against the Applicant;
(c)the best interests of minor children weigh moderately in favour of the Applicant;
(d)expectations of the Australian community weigh significantly against the Applicant;
(e)non-refoulement obligations weigh neutrally in relation to the Applicant;
(f)the extent of impediments if removed weigh significantly in favour of the Applicant;
(g)the impact on victims weigh neutrally in relation to the Applicant; and
(h)the Applicant’s links to the Australian community weigh significantly in favour of the Applicant.
Clearly this determination contains strong elements both for and against the Applicant, but greater weight must ordinarily be assigned to the consideration of the Primary Considerations of the Ministerial Direction, and they clearly tip the balance against the Applicant.
In YKSB Mortimer J said:
While I have not accepted any of the applicant’s grounds of review, it can be readily appreciated that the applicant and his family will struggle to come to terms with the fact that the Tribunal’s decision will stand, and that the applicant is a step closer to being removed from Australia. The strength of the commitment shown to the applicant by some members of his family in their evidence and statements before the Tribunal was accepted by the Tribunal… These are events which will, as the statements of support to the Tribunal made clear, adversely affect a large extended family. That consequence can be publicly acknowledged, but it does not affect the Court’s task on review.[111]
[111] YKSB v Minister for Home Affairs [2020] FCA 476 at [57].
The Tribunal finds itself very much in the same position.
DECISION
The decision under review is affirmed.

I certify that the preceding 173 (one hundred and seventy - three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...................................[sgd].....................................
Associate
Dated: 28 October 2022

Date(s) of hearing: 28 October 2022

Applicant: In person

Solicitors for the Respondent: Mr E Taylor, Mills Oakley Lawyers

Date(s) of hearing:	28 October 2022
Applicant:	In person
Solicitors for the Respondent:	Mr E Taylor, Mills Oakley Lawyers