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

Ngatupuna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2120 (6 July 2021)
Division:General Division
File Number(s): 2021/2279
Re:Johnny Patrick Ngatupuna
APPLICANT

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

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:6 July 2021
Place:Sydney

The decision under review is affirmed.
..........................[sgd]............................
The Hon. Dennis Cowdroy AO QC, Deputy President
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 No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – extensive history of criminal convictions – crimes of violence – repeated warnings of action against visa if further offending – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President

6 July 2021

The Applicant, who is 44 years of age, was born in Auckland, New Zealand. The Applicant is a citizen of New Zealand. The Applicant first arrived in Australia on 27 March 1997 but departed Australia on 6 April 1997. Thereafter he returned to Australia on six occasions prior to his most recent arrival on 10 April 2007. The applicant then held the visa.
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 13 April 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, on 20 December 2019, to cancel the Applicant’s Special Category (Subclass 444) Visa (“the visa”) (“the original decision”).
On 20 December 2019, the Applicant’s visa was mandatorily cancelled (that is, the original decision) on the basis that the Applicant did not pass the character test because he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: s 501(3A)(a)(i) of the Act.
On 6 January 2020, the Applicant sought revocation of the original decision by completing a revocation request form and a personal circumstances form which was submitted to the Minister’s delegate or Department. The Applicant made representations as required by s 501CA(4)(a) of the Act and this is not in issue.
As above, on 13 April 2021, the Minister decided not to exercise the discretion under s 501CA(4) to revoke the original decision.
On 14 April 2021, the Applicant applied to this Tribunal for review of that decision. The hearing before the Tribunal was held on 22 June 2021 using the Microsoft Teams platform. The Applicant participated from Villawood Immigration Detention Centre.
For the reasons which follow, the Tribunal has decided to affirm the decision under review.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by ss 501(6)(a) and (7)(c) of the Act: s 501CA(4)(b)(i) of the Act; or
(b)there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii) of the Act.
As above, the Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
In making that determination, the Tribunal is bound by the statutory scheme and government policy, as will be discussed below.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of ss 501(6) and (7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to s 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction under s 499 of the Act to guide decision-makers in the exercise of power under s 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. Paragraph 5.2 of the Direction sets out a number of principles and indicates that the factors that must be considered in making a decision under s 501 or s 501CA of the Act (to the extent they are relevant in each case) are identified in Part 2. The paragraph relevantly provides:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out how the discretion is to be exercised and set outs the primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. It states that that primary considerations should generally be given greater weight than the other considerations, and that one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, the Direction also makes clear that information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider other considerations (paragraph 9 of the Direction) where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
EVIDENCE
The Tribunal has considered all the material placed before it which includes, primarily:
(a)The Applicant’s Statement of Facts, Issues and Contentions (with various attachments);
(b)Respondent’s Statement of Facts, Issues and Contentions;
(c)The Respondent’s Tender Bundle (attachments to the Statement of Facts, Issues and Contentions); and
(d)The Section 501G Documents.
The Tribunal also notes particular evidence, including evidence drawn out at the hearing, as follows.
Statements
The Tribunal has had regard to personal statements in support of the Applicant and work-related statements, including the statements attached to the Applicant’s Statement of Facts, Issues and Contentions. It is noted that the material in the Applicant’s Statement mostly reproduced documentation already in the Section 501G Documents.
Oral evidence
The Applicant
The Tribunal heard oral evidence from the Applicant.
The Applicant was self-represented
The Applicant was not legally represented. The Applicant attempted to secure the assistance of Legal Aid to represent him at the hearing but, by letter dated 21 May 2021 addressed to the Applicant, Legal Aid New South Wales declined to offer its assistance to the Applicant. Legal Aid indicated in that letter that the Applicant could apply for an internal review of their decision to refuse legal assistance within 28 days. However, the Applicant stated that he did not receive such letter until the day before the Tribunal hearing after he made enquiries of Legal Aid. Correspondence from Legal Aid to the Applicant, which was also filed with the Tribunal, indicates that Legal Aid emailed the Applicant a copy of that letter at the time of the letter.
The Applicant was offered an adjournment by the Tribunal in order for the Applicant to contact Legal Aid for advice or to secure legal representation, but it was noted to the Applicant the practicalities of that course given the time constraints concerning delivery of the decision[1] and that he was apparently outside of the time to apply for an internal review of Legal Aid’s decision in any event. Whilst the Applicant initially indicated he would like an adjournment; he ultimately indicated his willingness to proceed without legal representation.
[1] Pursuant to s 500(6L) of the Act, if the Tribunal has not made a decision in relation to the decision under review within 84 days after the day on which the Applicant was notified of the decision under review, the original decision of the Minister is taken to have been affirmed by the Tribunal. As a result, the Tribunal’s decision must be made by 6 July 2021.
The Applicant testified that he is now a very different person compared to his younger years when he made poor decisions, leading him to commit crimes. He repeatedly stated that he was now much older and wiser, and considered that at age 44, he was an old person and urged the Tribunal to accept that he had learned from his mistakes. He stated that he had been in some very bad circumstances and into 2018 he was “living rough” and was homeless. He states that it was these circumstances that caused him to engage in the violent offending at about that time.
The Applicant states that he was aware of courses that he could undertake, and which had been recommended. The evidence establishes that he had been offered courses to do with his alcoholism, anger management, and traffic offences and that he had undertaken some of those courses at the Police Citizens Youth Club (PCYC) in Redfern in about 2011.
More recently in 2019 he had attempted to do various courses whilst in prison but due to being moved from one jail to another, he could not complete such courses. Those courses, arranged by TAFE, related to anger management, family relationships, addiction, and driving whilst disqualified. He stated that in relation to several courses, he tried to undertake them, but they were terminated or made unavailable due to COVID-19 related restrictions.
The Applicant stated that he considered it was essential for the well-being of his stepchildren and particularly his step-grandchildren that he should remain in Australia and “show the grandchildren the way”. He stated he had a strong relationship with them, even though one child was only one month old before the Applicant was incarcerated and the other child was born in March 2020 during his period of incarceration. The Applicant stated that the home life in which the children were working was “terrible” and that there is a risk that the grandchildren could be removed in the care of the Department of Community Services. The Applicant repeatedly stated that his stepchildren and grandchildren were “not my normal family”, but that he wanted to show them a good example. He repeatedly stated that he had a different approach to life now and stated that it was unfortunate that he had made “poor decisions”. He stated that he had a “good run” until the breakdown of his relationship with his apparent current partner. He said that his stepchildren had helped him in the past and that he was very close to them. One of the stepchildren has been homeless, and is expecting a child, and the Applicant expressed his desire to help her, stating that she needed the support of the Applicant.
The Applicant repeated that he was “not the same person now”; that his “life is changed since then”, and that since his interview with the Department and the warnings received, he would not be re-offending in the future.
In respect of his contribution to the community, the Applicant also stated that he has always been involved with music and had worked as part of a musical group. He has provided his services, with the group, farewelling tourists on cruise ships in Brisbane by providing music of the South Pacific as a prelude to the cruise to that region. The Applicant also stated he has provided his music for various charities including an event when a canoe crossed from the Cook Islands to Australia three years ago. The Applicant stated he also participated in activities supporting cancer charities and in Brisbane including Bridge to Bridge fundraising campaigns.
The Tribunal has noted the extensive oral evidence provided by the Applicant to the effect that he was now remorseful, reflective and would not commit offences again. Regrettably, identical sentiments were expressed by him more than a decade ago. In addition, the Department has notified him multiple times about the potential consequences of his offending on his visa status, providing him warnings that any further criminal conduct was likely to lead to the cancellation of his visa.
Other witness evidence
Applicant’s partner
The Applicant’s partner testified that she had been in a relationship with the Applicant for approximately 10 years until 2018. Thereafter there was a break of a year and they resumed their relationship in 2019. The Applicant’s partner spoke strongly in favour of the Applicant and said she had visited him at the Villawood Immigration Detention Centre the day before the hearing.
The Applicant’s partner stated that she had no concerns for herself concerning any threats of violence from the Applicant. She said that in the past the Applicant had a problem whilst intoxicated when he would make various threats towards her. However, she disputed that she had ever been subjected to any physical violence and stated that she had never been assaulted by the Applicant. She stated that the police records which suggested that she had been at risk were exaggerated. She stated that she had never applied for an apprehended violence order against the Applicant. She said that she had never been in fear of the Applicant, despite the police records indicating to the contrary. She stated that she recalled an event at Maroubra when an apprehended violence order was issued but stated that she did not apply for it and offered no evidence when the matter came before the court.
The Applicant’s partner stated that she had no fear of the Applicant in the future and expressed a strong desire that he be allowed to remain in Australia.
Applicant’s stepson
The Applicant’s stepson, who is an adult, gave evidence. He stated that the Applicant had been like a father to him and to his children. The witness regarded the Applicant as a “good role model” and “good support person”.
The witness was “not aware” of the Applicant’s criminal offending but was aware that he had spent much time in prison. The witness had not seen the Applicant for a period of three years. The witness believed that the Applicant had been involved in a car chase which led to his incarceration. The witness said he did not know why the Applicant’s visa had been cancelled. However, he stated that if the Applicant was required to leave the country, it would pose a “big problem” because the Applicant had been like “a father” to the witness and “grandfather” to the witness’s children. He stated that the grandchildren called the Applicant “pop” and that they would miss him “big time”.
The witness mentioned that his two children, the Applicant’s step-grandchildren, who are two and three years old, last saw the Applicant “just after” they were born; that is about “two times” in total.
Applicant’s stepdaughter
The Applicant’s stepdaughter, who is an adult, gave evidence. She said that she last saw the Applicant shortly before he was imprisoned (April 2020) and had not visited him in prison but maintained contact by electronic means and by the telephone.
The witness stated that she was aware of the reason for the Applicant’s imprisonment and of his criminal conduct, but she was not aware of the reason for the cancellation of his visa.

The witness states that the Applicant had cared for her and her brother for about 10 years and was a “good father model”. The witness was aware of the Applicant’s drinking issues and stated that she would help him if he were released into the community, by encouraging him to attend and going with him to courses. The witness did not agree with the Minister’s representative that there was a risk that the Applicant would reoffend, stating that his reoffending has not been consistent “through the last ten years”. The witness stated that the Applicant was her “emotional support” both emotionally and mentally, and that it would affect her if the Applicant was deported.
Applicant’s sister
The Applicant’s sister was not available to provide oral evidence, however the Tribunal notes her written statement in support of the Applicant and her offer to provide housing for the Applicant if he were to remain in Australia.
APPLICANT’S CRIMINAL HISTORY
The Applicant has an extensive criminal history in New Zealand and in Australia. In New Zealand, between 11 April 1994 and 9 September 2005, the Applicant was convicted of 35 offences including drink driving, driving while disqualified, wilful damage and common assault.
In Australia, between 16 May 2007 and 13 August 2020, the Applicant has been convicted of 41 offences, many of which were of a most serious kind including assault occasioning actual bodily harm, armed with intent to commit indictable offence, police pursuit, driving whilst under the influence of alcohol and drugs, driving while disqualified, common assault and assaults against police officers.
The full extent of the Applicant’s convictions in Australia is detailed in an Australian Criminal Intelligence Commission “Check Results Report” dated 27 January 2021.
Previous warnings by the Department to the Applicant regarding cancellation of his visa
The Applicant has been warned numerous times by the Department about the consequences of his criminal offending on his visa status.
On 12 February 2009, the Department of Immigration and Citizenship (as it was then known) (the Department) wrote to the Applicant informing him of the operation of section 501 of the Act and expressly warning him that any further criminal convictions could result in the cancellation of his visa.
On 22 September 2011, the Department again wrote to the Applicant informing him that his visa was being considered for cancellation. The Applicant replied to the Department on 8 November 2011 submitting that he had made a promise to his family that he would “never put them through this ever again”.
On 21 November 2011, a decision was made by the Department not to cancel the Applicant’s visa. However, at that time he was provided a formal warning and informed that further offending may result in the cancellation of his visa.
Recent offending
It is not necessary for the Tribunal to exhaustively detail all the Applicant’s criminal offending, but it outlines the most recent serious criminal offending.
The October 2019 convictions
On 31 October 2019, the Applicant was convicted by the Local Court of New South Wales at Sutherland of the following offences:
(a)Drive motor vehicle during the disqualification period (first offence);
(b)Drive with a middle range PCA (first offence);
(c)Failure to appear in accordance with bail acknowledgement; and
(d)Police pursuit – not stop – drive recklessly (first offence – T2).
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. A non-parole period of 10 months and 15 days was fixed.
It was these convictions that led to, on 20 December 2019, the mandatory cancellation of the visa.
The April 2020 convictions
On 24 April 2020, the Applicant was convicted by the Local Court of New South Wales at Sutherland of the following offences:
(a)Destroy or damage property (under $2000 – two counts);
(b)Armed with intent to commit indictable offence;
(c)Assault occasioning actual bodily harm; and
(d)Larceny (under $2000).
As a consequence of the April 2020 convictions, the Applicant was sentenced to 20 months imprisonment commencing on 1 April 2020 and concluding on 31 August 2021 with a maximum non-parole period of 15 months.
The Applicant appealed the severity of the sentence imposed for the April 2020 convictions. As a result of the appeal, the sentence of 20 months imprisonment was varied to be 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.
At the end of that sentence, the Applicant was released from prison on 30 November 2020 but was subsequently detained. He is presently detained at Villawood Immigration Detention Centre.
Sentencing observations
The Tribunal has considered sentencing observations in relation to some of the Applicant’s convictions and notes some observations.
Before the Local Court of New South Wales, when sentencing the applicant for the October 2019 convictions, Magistrate Connell stated inter alia that the police pursuit was “quite the serious example” of this type of offence and said that the offence exposed the community to risk of injury or worse given the Applicant’s manner of driving and that the police pursuit occurred in a“ heavily built up area”.
Before the Local Court of New South Wales at Sutherland, on 24 April 2021, Magistrate Mabbutt when convicting the Applicant of assault occasioning actual bodily harm; armed with intent to commit indictable offence; larceny (to a value less than $2000); and intentionally or reckless destroy/damage property (2 counts), made the following sentencing observations:
Firstly, in assessing the nature of this offence in the scheme of the seriousness of offences of this kind, as indicated this offence can only be viewed as a serious example of an offence of this kind. A stranger is approached by the accused in a public car park, threatened with a knife, attacked by a knife, punched in the face, had his property stolen and specific threats were made to harm him whilst the accused was in possession of a weapon. I have taken those factors into account.
Reflective of the plea and the serious nature of the offences the Court is of the view the only appropriate penalty, taking into account issues of general deterrence and recognition of harm done to the victim and the community must, in the Court’s view, be at the forefront of considerations in a sentence such as this. In respect of the offence I consider only a term of imprisonment is the appropriate penalty and I consider, given the nature and seriousness of the offences and issues of community protection pursuant to s 66 of the Crimes (Sentencing Procedure) Act the only sentence to be imposed must be a term of full time imprisonment to reinforce general deterrence, the recognition of harm done to the victim and the community and adequate punishment for the offence.
The Tribunal now turns to assess the primary and other considerations as relevant and to determine whether there is “another reason” why the original decision should be revoked.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires:
(a)an assessment of the nature and seriousness of the Applicant’s conduct; and
(b)the risk that the Applicant presents to the community should the Applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The offences committed by the Applicant, especially those which make up the April 2020 convictions, constitute violent crimes. There is no doubt that such conduct is very serious.
The Tribunal notes significant matters relevant to the consideration of the protection of the Australian community:
(a)On 4 October 2008, the Applicant punched a stranger on the side of the head with such force that the victim fell to the ground. On 5 November 2008 the Applicant was convicted of common assault, as a result of this behaviour.
(b)On 5 August 2020, the Applicant threw a glass at his partner while at a hotel. The manager of the hotel intervened whereupon the Applicant took hold of the manager by the neck and said, “I will rip your throat out”. The Applicant threw his partner into a chair was seen punching her whilst she was screaming. In relation to that incident, the Applicant was arrested by the police. The Applicant resisted that arrest and physically injured two police officers during the arrest. On 2 December 2010, the Applicant was convicted of two counts of common assault and resist or hinder police in the execution of duty, as a result of this behaviour. Pursuant to the Direction, the Tribunal is required to view as serious, crimes against government representatives or officials due to the position they hold, or in the performance of their duties. At the Tribunal hearing, the Applicant’s partner stated that she had no recollection of such incident.
(c)On 19 December 2013, the Applicant attacked a taxi driver, physically grabbed and dragged him through a service station store, causing him to fall across shelving. On 24 September 2014, the Applicant was convicted of common assault, as a result of this behaviour.
(d)The October 2019 convictions demonstrated a disregard for the law, especially in regard to the Applicant’s failure to appear in accordance with the bail acknowledgement and being involved in a police pursuit when the Applicant attempted to evade a mandatory breath test. The Applicant, when apprehended, recorded a blood/alcohol reading of 0.101, being more than double the lawful limit. On investigation it was found that the Applicant had been disqualified from holding a Driver Licence until 2035. As noted previously, the sentencing Magistrate described the offences relating to the pursuit as serious and exposing the community to risk of injury.
(e)The April 2020 convictions were of a particularly serious kind. Such convictions followed from conduct that occurred on 17 November 2018 when the Applicant assaulted the victim who was a stranger after the victim enquired of the Applicant if he needed assistance. The offences took place in a shopping complex car park. The Applicant entered the victim’s vehicle, held a knife at the victim and informed the victim that he could kill him. The Applicant swung the butt of the knife at the victim’s head and split it open. When the victim asked the Applicant to calm down the Applicant punched the victim twice. The Applicant threatened to stab the victim if he did not turn off the car ignition. The victim did so and then escaped. As noted previously, the sentencing Magistrate described these offences as serious.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction and notes the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable. The factors to which Tribunal must have regard in considering the risk to the Australian community under this paragraph are (a) the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and (b) the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Tribunal is satisfied that the criminal history of the Applicant suggests that he could pose a real risk of serious harm to the Australian community should he engage in other serious conduct or reoffend again. The Tribunal has already noted the Applicant’s extensive criminal history and the seriousness of some of the offences for which the Applicant has been offended. The more recent offences suggest that there has been an escalation in seriousness involving reckless driving, driving under the influence of drugs/alcohol and assault occasioning actual bodily harm.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs strongly against revocation of the original decision.
As has already been mentioned, the Applicant has been warned numerous times by the Department about the consequences of his criminal offending on his visa status and has continued to offend despite those warnings.
The Applicant has had opportunities to rehabilitate himself but despite repeated cautions, penalties and imprisonment the Applicant has continued to persistently offend in a violent manner. Whilst the Applicant claims that the police pursuit was “very out of character”, the Tribunal notes that the Applicant has had 16 driving offences throughout his criminal history. The Applicant has not satisfied the Tribunal that he has taken any real steps or has the will to rehabilitate himself. The cumulative effect of the Applicant’s extensive offending indicates a strong likelihood of recidivism.
The Tribunal also notes a psychological report prepared by Ms Fritchley, Psychologist, dated 20 April 2020 which was commissioned in relation to sentencing for his criminal offending at that time by the Applicant’s solicitor at that time. That report stated:
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.
There is little evidence to suggest that any attempt has been made by the Applicant to address these issues since the time of that report or to suggest that the Applicant has experienced any genuine rehabilitation or reduced his risk of recidivism, apart from the various courses said by the Applicant to have been undertaken in incarceration, which do not appear to have been completed. In any event, it is not clear that such courses would, given the extent of the Applicant’s criminal offending, suggest much in the way of rehabilitation.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
There is evidence that the Applicant has engaged in acts of family violence. The Applicant has been convicted of two offences involving family violence and there are police records of other incidents of violence which did not appear to result in charges or convictions.
The December 2010 conviction, detailed above in respect of the protection of the Australian community consideration, involved serious violence against the Applicant’s partner. The Applicant has stated that he had no recollection of such offence.
On 23 March 2013 another incident occurred in Queensland as reported in a Queensland Police Service Report. It states that the Applicant attended the address of a female victim; he went to the home and he refused to leave, and he verbally abused the occupant. He locked the front door of the house where the victim and his two children were hiding and commenced to swear and shake the door. He abused the victim and stated that he was going to “smash her white teeth” and threatened to burn the house down. The Queensland Police made an application for a domestic violence order, and a Protection Order was made on 27 March 2013 under the Domestic and Family Violence Protection Act 2012 (QLD).
On 4 October 2013 in the Helensvale Magistrates Court, District of Gold Coast Queensland, the Applicant was found to have contravened the Apprehended Violence Order made on 27 March 2013.
On 18 July 2013 an interim Apprehended Personal Violence Order was issued against the Applicant for the protection of an unknown female.
Further, New South Wales Police records report an incident which occurred on 6 April 2018 when the Applicant struck his partner (apparently his current partner) causing her to stumble backwards and resulting in bruising. The victim stated that the Applicant had “attempted to block all forms of communication” and that she was fearful for her safety.
On 26 April 2018 a complaint was made to the NSW Police in relation to the alleged assault on the Applicant’s partner at Maroubra. Police were called. The police record states that the Applicant had sent threatening messages and an Apprehended Violence Order was issued. These proceedings were dismissed when the victim did not give evidence in the Local Court of New South Wales at Waverley.
Finding on Primary Consideration B

The Tribunal finds that this consideration weighs strongly against revocation of the original decision to cancel the visa.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has identified the following children as relevant:
(a)The Applicant’s biological son. The Applicant’s son is of adult age and is not therefore relevant to this consideration.
(b)The Applicant’s two step-grandchildren (being children of the Applicant’s partner’s adult son – the Applicant’s stepson). One child was born in April 2019 and the other was born in March 2020.
(c)The Applicant’s nephew and nieces (whose number and ages are unknown).
The Applicant claimed that he was close to his step-grandchildren and that he would be unable to provide his stepson and his step-grandchildren with support if he were returned to New Zealand. The Applicant’s stepson has provided a statement claiming that he and his two children “need [the Applicant] in [their] lives” and that the Applicant is the “patriarch of the family”.
When the Applicant was incarcerated (28 August 2019 until 30 November 2020), one step-grandchild was four months old and the other was not yet born. Accordingly, the Tribunal considers that the Applicant’s relationship with their lives has been exceptionally limited. Whilst it may be in the best interests of the Applicant’s step-grandchildren for the original decision to be revoked, the relationship carries very little weight because of the short time of any association.
The Applicant also stated that he has a “tight connection with [his] nieces and nephews”, and that he was “the favourite uncle” and they would “always have Christmas in [his] house”. The Tribunal gives this little weight given the Applicant’s minimal association with these children, the extended periods of incarceration and that other people already fulfill a parental role in relation to these children.
Finding on Primary Consideration C
The Tribunal overall considers that the best interests of the children, and of any nieces and nephews, weighs slightly in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
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.
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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)   acts of family violence; or
(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)    worker exploitation.
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 as a whole, and in this respect, decision-makers should 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 and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). 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 Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Finding on Primary Consideration D
The Applicant has an extensive history of criminal offences, including serious and violent offences. The Tribunal accepts that the Australian community’s expectations would weigh strongly against revocation of the original decision.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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:
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 Applicant is 44 years of age. Whilst he claims to be currently receiving treatment, including physiotherapy for his hip, there is no evidence to suggest that such treatment would not be available in New Zealand or in the Cook Islands, if he was sent there. The Applicant states that should require a hip operation in the Cook Islands or New Zealand he would be required to pay for the surgery which would be free of charge in Australia.
The Applicant stated that he would have no problem relocating, but he would have to start his life over again.
The Applicant says there are no job opportunities in New Zealand and no money to be made by him there.
The Applicant states that he has worked as a scaffolder from 2006 to 2019 and has obtained a Scaffold High Risk Licence awarded at TAFE. The Applicant could use such skills and experience and employment in either New Zealand of the Cook Islands, although he may have to requalify. There is some evidence to suggest that the Applicant has family and a support network in the Cook Islands who could support him in establishing himself there.
It is acknowledged that the Applicant may face a period of adjustment and impediments on his return to New Zealand or Cook Islands, but these are not significant. These considerations do not weight against revocation.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The violent offending has placed members of the public and the police force at risk. There is no doubt that such conduct would have been traumatising for his victims, one of whom was terrified after escaping from the Applicant.
This factor weighs strongly against revocation of the original decision.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for 14 years, and states that his strongest links are his family. The Applicant has family ties to Australia and the Tribunal accepts that there may be emotional hardship if the original decision is affirmed.
The Applicant says he has always liked music. That he has performed singing and dancing for charity functions. As detailed in the introduction of these reasons, the Applicant mentioned, at the hearing, his involvement in musical groups and employment with cruise ships and involvement with charities.
Statements have been provided by former employers which speak of a high standard of the Applicant’s work as a subcontractor and of his work ethic, communication and behaviour. Another statement refers to the work of the applicant since he commenced in May 2019. The Applicant has contributed to the Australian community by being engaged in gainful employment. However, his history of offending has obviously contributed to an inconsistent employment history.
Impact on Australian business interests
In respect of the impact on Australian business interests, the Applicant alleged he commenced his own scaffolding company in May 2019. There is no evidence of the Applicant’s delivery of a major project which is important or essential to Australia.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the Applicant’s ties to Australia are such as to weigh slightly in favour of the revocation of the original decision.
CONCLUSION
The violent criminal conduct of the Applicant, the fact that such conduct has been repeated despite his previous statements of contrition, and his receiving multiple warnings of the consequences of criminal conduct for his visa status, indicate that the Applicant would be a risk to the Australian community. The interests of minor children and the Applicant’s links to the Australian community weighs slightly in favour of the Applicant, but those interests cannot, in the circumstances of this case, outweigh the primary considerations that have been determined to weigh against revocation of the original decision to cancel the visa, namely the protection of the Australian community, family violence committed by the Applicant and expectations of the Australian community which decidedly weigh against revocation of the original decision.
DECISION
The decision under review, that is the original decision to not revoke the mandatory cancellation of the Applicant’s visa, is affirmed.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

...........................[sgd]...........................
Associate
Dated: 6 July 2021

Date of hearing: 22 & 23 June 2021

Applicant: Self-represented

Solicitor for the Respondent: Arielle Zinn, Mills Oakley Lawyers

[2021] AATA 2120

6 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies