Nuuamoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3295
•13 September 2021
Nuuamoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3295 (13 September 2021)
Division:GENERAL DIVISION
File Number: 2021/4204
Re:Mafoe Chanel Nuuamoa
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:13 September 2021
Place:Melbourne
The Tribunal, under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of class CY Subclass 444 Special category visa – where applicant has substantial criminal record in terms of Migration Act provisions – where applicant concedes he fails character test – possible invalidity in mandatory cancellation of the visa – invalidity does not preclude review by Tribunal of whether there is another reason under s 501CA of Act to revoke mandatory cancellation of visa – where minister has made a direction – Direction No. 90 – primary considerations – protection of Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence – family violence affecting children – the best interests of minor children in Australia – expectations of Australian community – other relevant considerations – extent of impediments if applicant removed to New Zealand – impact on victims – links to the Australian community – any other relevant matter – decision under review affirmed
Legislation
Administrative Appeals Act 1975 (Cth), ss 18B, 33A
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Secondary Materials
Migration Act 1958 – Direction No. 90 – direction under s 499 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
13 September 2021
GENERAL BACKGROUND
The Applicant, Mr Mafoe Nuuamoa, was born in Auckland, New Zealand, in 1983 and confirmed to the Tribunal that he is a New Zealand citizen. He believed he first arrived in Australia in 1996. The movement record in evidence indicates his first arrival in Australia was in August 1997, but nothing turns on this difference. Mr Nuuamoa said he believed he arrived on a New Zealand passport. He said he was in the company of his parents who had been residing in New Zealand but who were born in Samoa (then Western Samoa). Mr Nuuamoa has five sisters who also emigrated and live in Australia, as do his parents.
As a New Zealand citizen, he was granted a Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) when he arrived. A new issuance of this visa occurred when he most recently arrived in Australia on 13 January 1999. This class of temporary visa entitles the holder to stay in Australia for an indefinite period but does not confer permanent residency rights.
Mr Nuuamoa has brought to the Tribunal an application for a review of a decision made by a delegate of the Respondent on 18 June 2021 under section 501CA(4) of the Migration Act 1958 (‘the Act’) not to revoke the mandatory cancellation of his visa.
That visa was mandatorily cancelled on 21 October 2020, under section 501(3A) of the Act on the basis that Mr Nuuamoa has a ‘substantial criminal record’ as that term is defined in the Act and therefore fails the character test in section 501(6)(a) on the basis of section 501(7)(c) of the Act.
A letter notifying the Applicant of the delegate’s decision not to revoke the mandatory cancellation is before the Tribunal and is dated 21 June 2021. There is a strict timeframe for the Tribunal to review these decisions. Under section 500(6L)(c) of the Act, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision, the Tribunal is taken to have affirmed the decision under review. That date is 13 September 2021.
HEARING
The hearing of the matter was on 6 and 7 September 2021 by videoconference, under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), and in accordance with the COVID-19 Special Measures Practice Direction issued by the President of the Tribunal under section 18B of the AAT Act and dated 27 April 2020. Mr Nuuamoa represented himself and made submissions. The Minister was represented by Ms Sarah Thompson of HWL Ebsworth Lawyers. The Applicant gave evidence and was cross-examined. Two witnesses called by Mr Nuuamoa also gave evidence: his sister, Ms AN, and his de facto partner, Ms ES, on the second day.
The Respondent tendered a volume of ‘G’ documents (‘GD’) (Exhibit R1), and a volume of supplementary ‘G’ documents (‘SGD’) (Exhibit R2).
The Applicant tendered a written statement and a Bundle of documents (Exhibit A1); a written statement of 2 September 2021 of Ms AN (Exhibit A2); and a written statement of Ms ES dated 2 September 2021 (Exhibit A3).
The Respondent also submitted a Statement of Facts, Issues and Contentions, to which the Tribunal had regard.
Preliminary procedural matters
The written statements for the two witnesses the Applicant wanted to call were dated 2 September 2021. They were lodged with the Tribunal and provided to the Respondent on the same date. Section 500(6J) of the Act relevantly states that if an application is made to the Tribunal for a review of a decision under section 501CA(4) not to revoke a decision to cancel a visa and the decision relates to a person in the migration zone (i.e. within Australia and its Territories):
The Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review…
The Tribunal noted that the written statement lodged by Ms AN was substantially similar to a written statement she had earlier lodged with the Department of Home Affairs (‘the Department’), which was in the GD, and considered that there was no preclusion on her being called to give evidence on the first hearing day. Ms Thompson, for the Minister, agreed. In relation to the second witness, the Applicant’s partner, Ms ES, there was also an earlier statement from her in the GD. However, Ms Thompson submitted that some of the matters on which she wished to question Ms ES would touch on fresh information in her 2 September 2021 statement which was not in her earlier statement.
The Tribunal agreed to adjourn the hearing after the evidence of the Applicant and Ms AN, and to resume on 7 September 2021 to hear the evidence of Ms ES and closing submissions. This would comply with the strictures imposed by section 500(6J) of the Act.
This approach is consistent with the reasoning of the High Court of Australia in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, at [73], and in the (separate but concurring) judgment of Nettle J in that case, where His Honour stated [113]-[116]:
Finally, there remains the question of whether, when a hearing is adjourned from day to day, the second and any subsequent day of the hearing should be regarded as part of the hearing which began on the first day or as a separate hearing for the purposes of the provision.
Ordinarily, one would speak of each day of a hearing as part of the one hearing. So, as has been observed, if s 500(6H) had been drafted in terms akin to s 33(2)(a) and (b) of the AAT Act as requiring notice not less than two business days before the hearing of the application for review, there would be little reason to doubt that the requirement was to give notice not less than two business days before the first day of the hearing regardless of whether the hearing might be adjourned at the end of the first day and then continue for several days thereafter.
But, as has been seen, in the case of s 500(6H) the use of the expression "a hearing ... in relation to the decision under review" contemplates the possibility of more than one hearing and thereby leaves open as a possible construction that each day's hearing may be regarded as a separate hearing for the purposes of giving notice. Since that construction would have the least impact on the ability of the AAT to deal with an application for review in the manner which it conceives to be best calculated to achieve a just disposition of the application, and would also be consistent with the perceived object of the provision of ensuring that the Minister is not taken by surprise, that construction should be preferred.
LEGISLATIVE FRAMEWORK
What is the matter for the Tribunal to decide?
The Act provides, at section 500(1)(ba), that a person may ask the Tribunal to review a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. There are two important things to keep in mind. The first is that the Tribunal is not reviewing the decision of the delegate and the Tribunal is making a fresh decision based on the law and the information before it. Secondly, both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate.
The Tribunal is required to make an evaluation of the factors for and against revocation. North ACJ said in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal therefore must decide two questions. First, whether the Applicant fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that Mr Nuuamoa does fail the character test, there is a second question for the Tribunal to consider – is there ‘another reason’ the cancellation of his visa should be revoked.
The mandatory cancellation of the visa
Does the Applicant have a ‘substantial criminal record’?
An Australian Criminal Intelligence Commission report dated 16 January 2021 (‘report’) relating to the criminal history of Mr Nuuamoa was before the Tribunal (GD, pp 51-55). This report records that on 10 April 2002, the Applicant was convicted of the offences of Recklessly cause injury and Reckless conduct endanger serious injury at Broadmeadows Magistrates’ Court. He was ordered to serve 18 months’ detention in a Youth Training Centre.
On 27 November 2019, Mr Nuuamoa was convicted before the same Court of four counts of Theft from Shop (Shopsteal) and received 50 days’ imprisonment on each count, to be served concurrently. He was further convicted of three counts of Unlicensed driving, and received 50 days’ imprisonment on each count, and one count of Theft of a motor vehicle, for which he also received 50 days’ imprisonment. On the same date, he was convicted of the three counts of Burglary, three counts of Theft and two further counts of Theft of a motor vehicle. For this group of charges, he received 118 days’ imprisonment.
Section 501(12) of the Act provides that ‘imprisonment’ includes any form of punitive detention in a facility or institution, which encompasses Mr Nuuamoa’s 18 months’ detention in a Youth Training Centre. Section 501(7A) of the Act provides that where a person has been sentenced to two or more sentences of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. Apart from the 118 days’ prison mentioned in the previous paragraph, the eight terms of 50 days’ imprisonment imposed on the Applicant by the Court on 27 November 2019 must be counted as 400 days in terms of deciding whether the threshold of 12 months’ imprisonment is met under section 501(7) of the Act.
I find that Mr Nuuamoa does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c). I am satisfied that he has a ‘substantial criminal record’ because he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. That satisfies the ‘first limb’ required for the mandatory cancellation of a visa under this section of the Act.
Was the Applicant serving a sentence of imprisonment when visa cancelled?
The question about whether the Minister was compelled to cancel his visa under section 501(3A) also requires that the Applicant be serving a sentence of imprisonment on a full-time basis at the time of cancellation (section 501(3A)(b). Whether this ‘second limb’ was satisfied at that time is less clear.
Mr Nuuamoa’s evidence was that on 21 October 2020, which is the date he completed the prison sentence imposed by the Court, he had expected to be released. He was processed by the corrections authorities at the prison and readied to leave. He said he was then asked to wait in a cell. The Applicant said that officers of the Australian Border Force (‘ABF’) then arrived. He was given a letter (GD, p 153 and p 411) notifying him that his visa had been cancelled. These ABF officers then took him into immigration detention.
The Tribunal was concerned on the evidence that Mr Nuuamoa may have, in fact, completed his prison sentence when the decision to cancel his visa was made and the notice (dated 21 October 2020) was served, which would mean that section 501(3A)(b) was not satisfied. The advice from Corrections Victoria (GD, p 151) was that he completed his most recent period in full-time prison custody on 21 October 2020. After this query was raised, the Respondent offered to provide a written submission on this question by the end of 8 September 2021, which was done.
That written submission of the Respondent relevantly said:
At 9.06am on 21 October 2021, a Department officer contacted Port Phillip Prison and confirmed the applicant was currently serving a prison sentence.
(G Documents, page 321 (G321)).
This is not factually correct. Page 321 of the GD is a file note from an officer of the Department stating that the officer had emailed the sentencing area of the Victorian Department of Justice and Community Safety on 21 October 2020 and had been advised Mr Nuuamoa was serving a prison sentence. The file note is not signed but has the author’s position number and they have typed the time of completing the note as 9.06 am. It is not plausible that the email making the inquiry could have been sent, that the Victorian authorities could have checked their prisoner records and responded, and that the one-page file note could have been written – all within one minute. It also appears not to have been the prison where Mr Nuuamoa had been serving his sentence that was emailed but an administrative area of the Victorian Justice Department.
The note goes on to say that the Minister’s delegate decided to cancel the visa at 10.58 am, i.e. almost two hours later. A letter advising of the cancellation was then sent to the prison to give to Mr Nuuamoa. The evidence of the Applicant that he had been processed in the usual manner as he had completed his sentence is plausible, as is his evidence that, after completion of this release procedure, he was then asked to go and wait in a cell.
It would seem to the Tribunal that for a mandatory cancellation decision to be made on the very day a non-citizen prisoner is to be released having completed his or her sentence is perilous administrative practice, because the consequence may be the invalidity of the visa cancellation.
After receiving his evidence at the hearing, the Tribunal explained to the Applicant that, although the Respondent had offered to provide further submissions on the question, the Tribunal was not able to review whether the cancellation of his visa was valid, but that he did have an avenue to contest that before the Federal Circuit Court. I made clear to Mr Nuuamoa that my task was to review whether the delegate’s decision not to exercise the discretion to revoke the mandatory cancellation of his visa was the correct decision in law, and whether it had been in all the circumstances exercised in a preferable manner. The delegate who decided not to revoke the mandatory cancellation may or may not have been the same delegate who originally cancelled the visa. But it is indisputable that these were separate decisions, and the second one to decline to revoke the cancellation is reviewable by the Tribunal under section 500(1)(b) of the Act.
In PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050, Middleton J considered a submission that the validity of a decision under section 501(3A) of the Act affects the Tribunal’s ability to conduct a review under section 501CA(4). The alleged invalidity in that case was not related to section 501(3A)(b), but the principles propounded by the learned Judge are relevant. His Honour said, at [54]:
54 The Minister contends that the s 501(3A) decision was valid but says that in any event, the power under s 501CA(4) is enlivened where there has been a decision made as a matter of fact regardless of whether that decision as in law a valid or effective decision. In respect of the operation of s 501CA(4), the Minister relies on the decision of XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 (‘XJLR’), wherein Burley J found that the Tribunal had power to conduct its review under s 501CA(4) notwithstanding that his Honour considered the delegate’s decision under s 501(3A) to be affected by jurisdictional error: see [90]. His Honour held:
[88] As a consequence of the separation of the cancellation power under s 501(3A) from the revocation power under s 501CA(4), a Tribunal review under s 501CA(4) does not involve the Tribunal standing in exactly the same shoes as the decision-maker who exercised the power under s 501(3A). Indeed, s 500(4A)(c) forecloses such a proposition by precluding the Tribunal from conducting a merits review of a decision of a delegate made under s 501(3A). Section 501CA(4) is the only means by which a review can be conducted of a decision under s 501(3A) on its merits. This power is only enlivened in circumstances when s 501CA(1) is satisfied; s 501CA(1) is the gateway to s 501CA(4). These matters indicate that the fundamental reason why the Full Court in Brian Lawlor adopted its construction of the word “decision” in the context of s 25 of the AAT Act, is equally applicable in this context; if only valid decisions made under s 501(3A) are amenable to review under s 501CA(4) then certain decisions most in need of review, being those made in want or excess of jurisdiction, would be precluded from merits review: Plaintiff S174/2016 at [39].
[89] Furthermore, if the power under s 501CA(4) is conditioned on the existence of a valid decision under s 501(3A), technicality would be introduced at the outset of every decision under s 501CA(4) because the Tribunal would first need to consider the validity of the decision made under s 501(3A) in order to be satisfied that it has jurisdiction to commence its task under s 501CA(4). Similarly, if s 501CA(1) is construed as applying only to valid decisions made under s 501(3A), the Tribunal would have no power to set aside a decision made under s 501(3A) that was made in jurisdictional error. This is because the Tribunal’s powers to revoke a s 501(3A) decision are found in s 501CA(4), a provision which does not apply unless s 501CA(1) is satisfied. This would be remarkable result.
55 This approach is consistent with the reasoning of Edelman J in the recent decision KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24. In considering the operation of s 501A of the Act (which provides for a mechanism by which the Minister can set aside an original decision made by a delegate or the Tribunal), his Honour found (at [68]):
Section 501A applies, by ss 501A(1)(b) and 501A(1)(c), if the Tribunal makes a decision “not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person”. This precondition for the operation of s 501A is concerned with a decision, described as the “original decision” that is made, as a matter of fact, by the Tribunal. The precondition is not concerned with whether the decision of the Tribunal is, or is not, valid as a matter of law. Just as the Tribunal had jurisdiction to make its decision under s 501(1) even if the decision of the Second Delegate were invalid, so too the Minister had jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal were invalid: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21, (1979) 24 ALR 307 at 313-315, 335, 337; Plaintiff M174/2016 v Minister for Immigration and Border Protection {2018} HCA 16, (2018) 264 CLR 217 at 232-233 [39], 248 [95].
56 Applying this principle to the present case, I consider it to be clear that the Tribunal can exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) of the Act notwithstanding any purported invalidity of that decision.
Therefore, notwithstanding doubt that I have about the validity of the visa cancellation, I find that does not affect my duty to consider the application Mr Nuuamoa has brought to the Tribunal. My task is to determine whether there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the original decision to mandatorily cancel the Applicant’s visa should be revoked.
The ministerial Direction – Direction No. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a direction under section 499, Direction No. 90. Direction No. 90 (hereafter referred to as ‘the Direction’) commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
APPLICANT’S OFFENDING HISTORY
Mr Nuuamoa first appeared before the Courts in April 2002, when he was convicted of the offences of Recklessly cause injury and Reckless conduct endangering serious injury. He was sentenced to an aggregate of 18 months’ detention in a Youth Training Centre.
In May 2002, he was before the Courts and convicted of the offences of Drunk in a public place and Behave in offensive manner in a public place. He was fined $300.
In June 2002, Mr Nuuamoa was convicted of the offences of: Recklessly cause injury; State false name when requested; State false address when requested. He was sentenced to serve five months on each count in a Youth Training Centre, to be served concurrently.
In August 2002, before Melbourne Magistrates’ Court, Mr Nuuamoa was convicted of several offences: Recklessly cause injury ( 2 counts): Theft; Assault in company; Criminal damage (intent to damage/destroy). He was sentenced to four months’ detention in a Youth Training Centre on each charge, with two months to be served concurrently on each, meaning a total of 10 months’ youth detention. He was also ordered to pay compensation of $2,500.
In September 2002, the report records he was convicted of the offence of Recklessly cause serious injury and sentenced to 18 months in a Youth Training Centre. In December 2002, Mr Nuuamoa was charged at Sunshine Magistrates’ Court with the offences of Theft of a motor vehicle and Theft from shop (Shopsteal). The Court did not record a conviction and adjourned the matters until October 2003.
In October 2003, the Applicant was before the Melbourne County Court and was convicted of the offences of Intentionally cause serious injury and Intentionally cause injury. On the first matter, he was sentenced to nine months’ imprisonment. On the second matter, he was sentenced to six months’ imprisonment, five months of which were to be served concurrently, giving a total of 10 months gaol.
In November 2005, Mr Nuuamoa was convicted at Broadmeadows Magistrates’ Court of the offences of Theft from Shop (Shopsteal)(3 counts); Theft of a motor vehicle; Burglary (3 counts); Attempted burglary; Fail to answer bail. He was sentenced to an aggregate of three months’ imprisonment, wholly suspended for 12 months.
In February 2006, Mr Nuuamoa was convicted before the same Court of the offence of Theft of a motor vehicle. He was ordered to serve a Community Based Order of 150 hours of unpaid community work over 12 months. His driver licence was cancelled, and he was disqualified from driving for six months.
In June 2008, also before Broadmeadows Magistrates’ Court, the Applicant had the suspended sentence imposed in November 2005 wholly restored and he was ordered to serve three months in prison. On the same date, he was convicted of the charges of Intentionally damage property (2 counts) and given an aggregate term of four months’ imprisonment, wholly suspended for six months.
In March 2012, Mr Nuuamoa, the report records, was before the same Court and convicted of the offence of Driving whilst authorisation suspended. He was sentenced to three months’ imprisonment, wholly suspended for 12 months, and was suspended from driving for three months.
There was a gap in the Applicant’s offending until February 2019 when he was again before the Broadmeadows Magistrates’ Court charged with the offences of Possess methylamphetamine, Criminal damage (with intent to damage/destroy); Theft from shop (Shopsteal); Unlicensed driving; Theft; Unlawful assault; Contravene Family Violence Intervention Order; Commit indictable offence whilst on bail; Deal in property suspected the proceeds of crime; Fraudulent use of identifying number; Theft of a motor vehicle. He was ordered to serve a Community Corrections Order (‘CCO’) for 15 months to perform 180 hours of community work and his licence was cancelled for three months.
In April 2019, before the Broadmeadows Magistrates’ Court, Mr Nuuamoa was convicted of the offences of Contravene Family Violence Interim Intervention Order; Commit indictable offence whilst on bail; Possess methylamphetamine; Possess cannabis. He was fined $1,000.
In November 2019, before the same Court, the Applicant was convicted of the offences of: Theft from shop (Shopsteal) (4 charges); Unlicensed driving (3 charges); Theft of a motor vehicle (5 charges); Burglary (3 counts); Theft (3 counts); Unlicensed driving; Handle/receive/dispose of stolen goods (3 charges); Dishonest undertaking in retention of stolen goods (2 charges); Negligently dealing with proceeds of crime; Persistently contravene Family Violence Not To Contact Order. He was sentenced to an aggregate prison term of 50 days and ordered to pay amounts of compensation.
At the same Court hearing, the report records Mr Nuuamoa was found to have breached the CCO imposed in February 2019 and the Order was varied and imposed for 15 months.
In September 2020, Mr Nuuamoa was found by the Court to have contravened a CCO in relation to the offences of which he was convicted in November 2019, and the order was varied to apply until November 2021. On the same date, the Applicant was convicted of the following offences: Theft of a motor vehicle; Prohibited person possessing a firearm; Dishonestly undertake in the retention of stolen goods. He was sentenced to an aggregate of four months’ imprisonment and given a fresh CCO to undertake 100 hours of community work over 18 months. His driver licence was cancelled for one month.
OPENING STATEMENT OF APPLICANT
Mr Nuuamoa said he was very sorry for everything he had done and believed he was changed now and wanted to keep on the ‘straight and narrow’. He said he has been rehabilitated and felt he can do better for his family and show his children that he can be a better parent and a better member of the Australian community.
ORAL EVIDENCE AT THE HEARING
The Applicant
The Applicant confirmed in evidence that he is a citizen of New Zealand, not a citizen of Samoa as appears in some of the documents submitted to the Department.
Mr Nuuamoa said that he was currently in a relationship with Ms ES who is the mother of their three children and said they had periods of separation in 2016 and 2018 for around five or six months. He said when they had argued he would go and live with his parents, who lived close by.
Mr Nuuamoa said that he has five sisters, not the four he had included in his personal circumstances form (GD, p 191) and before he was incarcerated he would see his nieces and nephews two or three times a week and every Sunday at family gatherings.
The Applicant confirmed his history of employment (GD, p 193) and that he has worked as a forklift operator, a labourer and a storeman and helped Ms ES during a period when she ran a family day care operation. Mr Nuuamoa said he also worked for a period ‘on and off’ for his sister, Ms AN, who runs an arborist business, lopping trees and landscaping.
Mr Nuuamoa said he had seen the criminal history check in the documents and believed it was correct. When asked about the 2002 offending which led to him being sent to a Youth Training Centre for 18 months, the Applicant said he was intoxicated at the time. He said he remembered, with others, barricading the road and forcing a vehicle to stop. He agreed that he had assaulted the driver and the passenger in the vehicle and that they were strangers, and said he was ‘very intoxicated’ at the time.
Ms Thompson asked Mr Nuuamoa about an incident at a train station which led to his conviction for causing injury. He said he was drinking too much on this occasion. He said he could not remember hitting a stranger and kicking a victim in the head but did remember the subsequent Court proceedings and pleading guilty.
Mr Nuuamoa was referred to the defence response to the Court (SGD, p 607) and said he remembered the incident more clearly on reading that, and in reply to direct questions from the Tribunal said he did not know either of the persons assaulted.
Taken to a 2004 conviction for stealing a motor vehicle, Mr Nuuamoa said he remembered stealing a van and using it to ram commercial premises and steal items from them, including high pressure cleaners and phones, and that he was arrested when attempting to steal computers. When asked why he did this, he said he was a ‘bit drunk’, and admitted that he had a problem with alcohol.
Mr Nuuamoa said he knew he had a significant alcohol problem and was undertaking a drug and alcohol course in prison but did not complete it because he was released. He said he had not undertaken any equivalent courses when in the community because: ‘I cut down heaps in 2008 when I had my first daughter.’
The Applicant said he started taking methylamphetamine (‘ice’) around 2009-10 and continued to take it until 2019, sometimes also taking cannabis. He said he was introduced to drugs by people he worked with.
Mr Nuuamoa agreed that Child Protection authorities became involved with his family in 2016 because he had a fight with Ms ES. He said: “She wanted to kick me out. We were fighting over the kids. We had a scuffle.”
Mr Nuuamoa agreed that he attempted to strangle Ms ES in the scuffle and that their oldest daughter tried to intervene and ‘I shoved her.’
The Applicant could not remember whether Ms ES obtained an Interim Family Violence Order but agreed that it was in place for around 12 months and it prohibited him from visiting the family home. He said he stayed with his parents at this time.
Ms Thompson asked Mr Nuuamoa whether he tried to get help for his drug-taking at the time, and he replied, “It just got worse.”
When asked about a 2018 incident where he visited the family home and Ms ES would not allow him to come in, but did allow him to stay in the garage, Mr Nuuamoa said he remembered the events. The next day they took the oldest daughter to school together, with the younger two children in the car. Mr Nuuamoa said: “We had an argument. I hadn’t slept for days. She pulled over. I grabbed my son and shoved her head and hit the car.”
Mr Nuuamoa agreed that on this occasion he punched a window of the car, causing it to smash and that the other two children were in the car at the time (the eldest child having been dropped at her school). The Applicant agreed that an Interim Family Violence Order was taken out a few days later and that he was arrested when he breached its conditions and was caught outside a friend’s house talking to Ms ES.
Ms Thompson read to the Tribunal a report (GD, p 130) of the Applicant visiting the family home in breach of the interim intervention order and Ms ES talking to him but refusing to open the locked security door. A short time later Ms ES told police she heard bins being moved and she was worried Mr Nuuamoa might be attempting to use the bin to gain access to the property, so she dialled ‘000’. The police attended but were unable to locate Mr Nuuamoa. Several days later the Applicant was arrested and made full admissions to the police about breaching the order.
Mr Nuuamoa agreed that this led to the imposition of a full Family Violence Intervention Order (‘IVO’).
The Applicant said he undertook some drug counselling through his community case worker which ‘helped a bit’ but said he did not comply with the provisions of the CCO because ‘my drug abuse was bad’. He said he subsequently served 50 days’ gaol and undertook some counselling which he did not complete.
Ms Thompson asked Mr Nuuamoa about his 2020 convictions for motor vehicle theft and possessing a firearm. The Applicant said that he was holding the vehicle for a friend who ‘just wanted to park it for a bit’ and it was at the neighbouring unit, which was not occupied.
He said at this time his parents had custody of their children because Ms ES was undertaking rehabilitation and, as he was not permitted to be with the children, he had obtained other accommodation. Mr Nuuamoa said he did not steal the vehicle but had pleaded guilty before the Court because he was ‘sticking up for my friend.’
In respect of the firearm, Mr Nuuamoa said he did not tell the police it was not his; he had been given a case which he thought contained ‘clothes or something’ but actually contained the firearm, but said he did not want his friend to get into trouble so he told the police he had found it. He said he pleaded guilty to being a prohibited person in possession of a firearm to protect his friend.
The Applicant said being in detention had made him realise what he can lose, and that he wants to provide for his partner and his children. He said he had deleted all the numbers of his friends because he considered them bad influences. He said if released into the community he would make contact with his corrections officer and engage in some courses. “I never realized how bad my substance use was until I came in here. I have been clean now for eight months and am more focussed now.”
Mr Nuuamoa said he has regular contact with Ms ES and their children through telephone and video calls. He gave an example of watching his youngest child, M, play through the video call. He said he had undertaken courses when in Yongah Hill IDC but not since he was moved to Christmas Island IDC because they are not offered there.
Mr Nuuamoa said that if allowed to stay in Australia he would move in with his sister, Ms AN, who has offered him work. He said the IVO still applies and he would have to undertake whatever is required by Child Protection before he could reside with the children again.
The Applicant said that he is qualified to drive all kinds of forklifts and could now get his driver licence back. He agreed that he could probably get work driving a forklift in New Zealand if he is repatriated.
Mr Nuuamoa said he would prefer his children to grow up in Australia because he felt there were more opportunities in this country than in New Zealand. He said he had not discussed with Ms ES what would happen if his visa was not restored.
When asked about a reference in the report to a positive drug test in custody, Mr Nuuamoa said that was in 2002 when he was in the Youth Training Centre. When asked about an allegation of assault in prison, he said that he was put into isolation for a period but then the charges were all dropped.
Ms AN
The Applicant’s sister, Ms AN, gave evidence. She confirmed she and her husband run an arborist business. Ms AN said she was happy to offer accommodation to Mr Nuuamoa and for him to work in their business. She said she became aware of his history of drug abuse ‘about two years ago’. She was aware of the domestic violence incidents involving her brother, and that he had been physically violent with Ms ES ‘on a couple of occasions.’
Ms AN said she had never seen Mr Nuuamoa being physically violent with any of his children and considered him a ‘good dad.’
She said she wanted to help Mr Nuuamoa with his drug addiction. She had not considered what help she could offer if he was sent back to New Zealand and was worried that he would be lonely there.
Ms AN said that Ms ES has done everything she could to regain custody of the children and she considered they were ‘on the right path at the moment.’
Ms AN said she believed the Applicant should do a drug and alcohol course and an anger management course. She said Mr Nuuamoa was a ‘good worker’ when he had worked for her business in the past. Ms AN said the family did not have any relatives back in New Zealand now, but did have some in Samoa.
Ms ES
Ms ES said Mr Nuuamoa first started using ‘ice’ around 2010 but not ‘as severely’ as he started to in 2016. She said that she first experienced acts of family violence from the Applicant in 2010 but at that time they were brought about through intoxication, rather than drug-taking.
She said there were no instances of family violence when Mr Nuuamoa was not affected by drugs and alcohol.
Ms ES said it was in 2016 that Child Protection first became involved with the family after an incident where Mr Nuuamoa ‘tried to strangle me’. She said their oldest daughter intervened because she was trying to defend her mother.
Ms ES was asked about the 2018 incident in the car and said both her younger children witnessed it and it was a ‘really bad altercation’. She said it has had a lasting effect on their oldest daughter because ‘violence has taken over the good memories.’
Ms ES said she would not have concerns with Mr Nuuamoa spending time with their children now. She said she had been through an extensive plan involving Family Drug Court, and residential detoxification that she had arranged herself, to prove she was fit to care for the children. She now has resumed care of them and looks after another niece.
She said that the orders still adhering mean that if the Applicant was released into the community, he cannot live with her or the children. Ms ES thought he would only be able to see the children if another person was present, and might have to submit to random urine tests, as she had to before the custody of the children was restored to her.
Ms ES said that if Mr Nuuamoa relapsed into taking drugs, he would have no contact with the children or with her, and that her support for him was conditional on him being willing to engage with treatment.
Contrary to the evidence of Mr Nuuamoa, Ms ES said she had spoken to the Applicant about what would happen if his visa was not restored. She told the Tribunal that it was up to the children if they wanted to relocate to New Zealand in that eventuality. Ms ES said she would not be willing to go to New Zealand until Mr Nuuamoa could provide evidence to her of a safe and settled household, and he could provide for them.
Ms ES said that if they did not relocate and Mr Nuuamoa was back in New Zealand, she would ‘definitely’ take the children to visit him. She said in answer to direct questions from the Tribunal that she would put the interests of the children first. Ms ES said: “If he keeps away from friends, he can be a better person. He has been clean in prison and detention and has decided not to go back.”
CONSIDERATION OF THE DIRECTION
At paragraph 5.2, the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
(4) Australia 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.
(5) Decision-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 types 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.
The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, the following are primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The best interests of minor children in Australia; and
(4) Expectations of the Australian community.
Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These 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:
(i)strength, nature, and duration of ties to Australia; and
(ii)impact on Australian business interests.
The wording in paragraph 9(1) of the Direction makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another fairly put claim that something is relevant in the particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. The summonsed material indicates that some of Mr Nuuamoa’s offending fits into the category of violent offending and acts of family violence. There is no evidence before the Tribunal that the Applicant has committed any sexual crimes.
The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention. There was no evidence before me that these categories of offending are relevant.
In the GD was a report (GD, p 426) relating to the April 2002 conviction of the Applicant which refers to him and another blocking a road with wheelie bins, which forced a vehicle to stop. The report goes on to record that the driver and passenger were assaulted. The report also records Mr Nuuamoa being interviewed after the incident by the police. However, this appears to be an extract of a police report which has been copied on to a Department letterhead. While it does refer to Mr Nuuamoa and he accepted the broad outline of his 2002 offending when questioned by Ms Thompson, there is no source of this document and I am not prepared to rely on it. The convictions for Recklessly causing injury and Reckless conduct endangering serious injury, admitted by the Applicant, stand for themselves.
The Applicant has committed other violent offences. Before the Tribunal was a Court transcript of October 2003 (SGD, p 611) which records him admitting to police that he had been in company with others at a suburban railway station in February 2003 standing about. One of this group asked a man (‘victim 1’), who had arrived to catch a train, for a cigarette. Victim 1 said he only had one cigarette and walked away. Soon after someone struck victim 1 from behind and he fell to the ground. Victim 1 went to the male toilets to check his abrasions and decided he needed medical attention, so then went to the station master’s office. An ambulance was called and, after first aid treatment, conveyed victim 1 to the Royal Melbourne Hospital (‘RMH’). He was found to have a five-centimetre abrasion above his eye, abrasions on his forehead and both cheeks, an abrasion on the bridge of the nose, and the nasal bone was deviated, consistent with a fracture. The Applicant later admitted to police that he ‘elbowed’ victim 1 to the head.
While the ambulance officers were treating victim 1 at the station, the Applicant and another attacked another man, victim 2, who had arrived with his girlfriend to catch a train. His co-accused punched victim 2 and Mr Nuuamoa, in the Judge’s words, “stomped on his head”. Victim 2 was then jumped on and kicked by the two men. Victim 2’s girlfriend lay over him to protect him, and told police that, while she did, he was still being kicked.
A female ambulance officer attending to victim 1 saw the assault and called police. After she was sure the offenders had left the scene, she attended to victim 2’s injuries. He was taken by ambulance to the RMH and treated for a fractured jaw, a cut to his right eye, bruising to his face and a closed head injury. Victim 2 required surgery to fix his broken jaw. In his record of interview with the police, Mr Nuuamoa admitted kicking victim 2.
The Judge noted that evidence of an earlier assault by the Applicant at the same railway station was before her. Counsel for the defence told the Court that Mr Nuuamoa had a ‘very, very serious alcohol addiction for many years’ and that the night before the offending had been at an all-night drinking session with friends. He submitted that the moral culpability was slightly lowered because there was no predatory aspect and Mr Nuuamoa admitted he could not remember certain details of the offending, owing to his intoxication. Defence counsel also noted that the Applicant had not long been released from the Youth Training Centre at the time of this offending. The Judge noted that the victims were strangers. Her Honour imposed an aggregate sentence of 10 months’ imprisonment.
In December 2004 (SGD, p 639), the Applicant with two others broke into commercial premises in a suburb of Melbourne. They broke into a van parked at the premises and then used the van to ram a roller door, forcing entry to a building. They then stole two high pressure water cleaners, loaded them in the stolen van and left the scene. About an hour later they were observed reversing the van into the roller door of a different premises. They were in the process of stealing computer equipment and loading it into the van when police attended. They attempted to escape through the roof but were arrested. This led to the County Court convictions in November 2005 referred to above.
It is clear to me that the Applicant has been involved in violent offending, including causing serious injuries to complete strangers, after attacking them with no apparent motive. Heavy alcohol use may have been a factor in this offending, but it is certainly no excuse.
He has also been involved in significant property theft. While I may accept that alcohol was a factor in the two railway station assaults outlined above, I am less certain about premeditated thefts from commercial premises by stealing a vehicle and then using it to ram two separate premises with the intention of taking portable and valuable items. This was not spur of the moment offending. The second ramming was clearly premeditated.
The very first offending the Applicant was convicted of was in 2002, not very many years after he and his family had arrived in Australia. For that violent offending he received a heavy penalty of 18 months in youth detention. It should have been a salutary lesson, but his offending continued and to some extent escalated, as the summary of the national criminal history check above illustrates. While there was a gap of some years in the Applicant’s Court convictions, from 2012 to the beginning of 2019, it is reasonable to say, taking all the offending together, that there has been some trend of increased seriousness.
In the Respondent’s submissions, the Tribunal was urged to consider the Applicant’s family violence offending in the context of this primary consideration. I am reluctant to do so, because it might lead to ‘double counting’ when the Direction specifically directs a decision-maker to consider that category of offending under a discrete primary consideration. I shall do so later in these reasons.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should Mr Nuuamoa engage in further criminal or other serious conduct and the likelihood of him so engaging.
If the Applicant committed further acts of random violence, there would be a clear risk to innocent members of the community going about their daily lives. Mr Nuuamoa said that he has grappled with, and submits he has largely overcome, his alcohol addiction. He did say he still will when in the community consume some alcohol. It would seem to me that he has a specific and serious problem with anger management, as his sister Ms AN acknowledged. I was not convinced that he has a sure plan to tackle that in the community, though he did say he intends to seek out ‘counselling.’
Mr Nuuamoa has submitted evidence of several courses he has undertaken in prison and when in immigration detention. He has undertaken some trade and vocational courses, to improve his employability. He undertook short courses in drug and alcohol education in February and June 2021, anger management courses in February and March 2021 and other personal development courses in February, April, and June 2021. This shows a willingness to engage, albeit these are very short courses available in detention. Balancing that is evidence that he failed to address his drug and alcohol addictions under CCOs in 2019 and 2020 and told the Department of Health and Community Services (SGD, p 664) that when he exited remand he had determined that he would remain ‘clean’ but then caught up with friends to celebrate his release and lapsed again into taking ‘ice’.
In the hearing, the Applicant asserted that he considers himself ‘rehabilitated’ and said that he had deleted the numbers of certain of his friends from his mobile phone. This does imply to me that he considers, probably accurately, that he is vulnerable to reverting to criminal behaviour should he encounter these associates again. It is concerning that his evidence is that he pleaded guilty to two offences to ‘protect’ friends. Whether it is true or not, it reflects either a lack of acceptance of guilt on the one hand, or a weakness in relation to his criminal associates, on the other.
I believe Mr Nuuamoa has voiced good intentions, but not that he has set out an established plan to deal with the challenges that face him. His sister has offered him employment and accommodation, which is a positive and protective element, but I do not have sufficient information before me of the steps that the Applicant himself has mapped out. He said in his written statement (Exhibit A1) that he would seek relationship counselling with a psychologist, which shows a willingness to address the nature of his relationship with Ms ES and their children, but that does not indicate to me an appreciation of the other parts of his offending history, and how to address his vulnerabilities to re-offend.
One of the problems that the Applicant admitted was his addiction to methamphetamine. He told the Tribunal of a history of taking ‘ice’ from 2010 which only ceased on him entering prison in 2019. There is a reference to the Applicant having submitted to a total of 13 urine tests with two of them returning a positive result (GD, p 151). However, I note that the relevant report encompasses all conduct in custody ‘over time’. There are no dates of the incidents recorded. I am inclined to accept the Applicant’s evidence that these breaches were back in 2002 when he was in youth detention. There is no more recent evidence of drug use in prison or immigration detention. However, prison and immigration detention are protective and artificial environments. The difficulty with this particular addiction is that ‘ice’ leads to erratic and irrational behaviour, and also the craving requires money to fund it. There is evidence in the 2019 car incident involving Ms ES of the Applicant taking money from her purse. This is a significant factor in increasing the potential risk of re-offending that I am not convinced has been satisfactorily addressed by Mr Nuuamoa. Added to that is the evidence of Ms AN who said she did not know of his drug taking until two years ago, and the evidence in Child Protection documents before the Tribunal that his parents also did not know of his drug taking and violent offending until around two years before he was incarcerated. This inclines me to believe that he hid this conduct from his family.
On the evidence before me, I consider there remains a real risk that Mr Nuuamoa would re-offend, either in a domestic situation, in the wider community, or both. It is a real risk that I am satisfied is an unacceptable one. This primary consideration therefore weighs relatively strongly against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise 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 person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence. There was no evidence before me of formal warnings, but there was evidence of the Applicant being brought before the Court because of persistent breaches of orders.
As mentioned above, Mr Nuuamoa has been convicted by the Courts of breaching IVOs, a fact he freely admitted in the hearing. The Tribunal also has regard for summonsed documents from the Child Protection Subpoena Unit of the Victorian Department of Families, Fairness and Housing which records (SGD, p 652) three reports in the period 2016-17 relating to the Applicant perpetrating family violence towards Ms ES and regularly using methamphetamine. The document relevantly states, with appropriate redactions:
On 07 September 2019, Child Protection received a report of a significant family violence incident between Mr Nuuamoa and [Ms ES] which the children were exposed to and attempted to intervene. During the incident Mr Nuuamoa punched and broke the car window the children were sitting in and attempted to flee with [the child M]….
A full exclusion Intervention Order was already in place listing the father as the respondent and the children and the mother as the protected persons. Throughout the Protective Intervention the father continued to have contact with the children and the parents continued to use illicit substances.
In a separate report from Child Protection (SGD, p 667) it states, in respect of previous advice Ms ES had given to them:
The mother disclosed to CP at the time that the father is a drug user, and there is a pattern of significant physical assaults (choking, kicking, punching, stalking and threats to kill) from the father when he is “coming down” from ice. The children were reported to have witnessed ongoing family violence, previous to a very significant incident on 12/04/2016 where the father was choking the mother in front of the children. [The child L], who was just 11 at the time, tried to physically intervene to protect her mother, and she was assaulted too. The father then locked himself and [the child M] in the garage for half an hour. At the point of CP closing involvement, the children were having no contact [with the father] and the mother stated she was not intending to reunite with the father.
…
With regards [sic] to the father’s drug use, it is demonstrated during previous protective involvement that his drug use is associated with a high level of violence, so continued drug use whilst having contact with the children raises significant concerns.
The Tribunal considers that the evidence in the criminal history check and the summonsed documents from Child Protection indicate that there has been a history of family violence, with some cumulative effect. It is notable that Ms ES told Child Protection of a ‘pattern of significant physical assaults’ prior to the 2016 incident which was the subject of a report. There was reference in the Child Protection report of one instance of the Applicant’s oldest daughter, ‘L’ self-harming. Mr Nuuamoa did continue to breach orders that he knew were in place to protect his partner and children.
I am not convinced that the Applicant demonstrated to me a full appreciation of the effect his actions may have had on the children; he tended in his evidence to link all this conduct to his ‘ice’ addiction. While there clearly was a strong link, it does not excuse his conduct in physically assaulting Ms ES and – whether advertently or not – his young daughter L, when she tried to protect her mother. It is also clear from Ms ES’s evidence above that family violence incidents had occurred from around 2010, but she dated his more severe addiction to ‘ice’ from 2016, when the first family violence incident came to the notice of Child Protection. Ms ES suggested the earlier family violence was precipitated by Mr Nuuamoa’s drinking, not his drug-taking.
Although there are protective measures to separate the Applicant from Ms ES and the children should he be released to the community, there is a pattern of him ignoring such orders before. On the evidence before me, I am satisfied that this primary consideration weighs strongly against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ.
Mr Nuuamoa and Ms ES together have three children, a daughter, L, who is aged 16; a daughter ‘T’, who is aged 12, and a son ‘M’, who is aged 6. The Applicant also provided to the Tribunal the names of seven nieces and nephews, children of his sisters. I will consider the best interests of the Applicant’s own children first, and then the best interests of his nieces and nephews.
Mr Nuuamoa confirmed in his evidence at the hearing that in one family violence incident where he attempted to strangle Ms ES, his elder daughter, L, attempted to intervene and he ‘shoved’ her away. He also confirmed that in a second incident when he and Ms ES had taken L to school and dropped her off, and then had an argument in the car, both T and M were present. He confirmed that as part of the dispute he tried to get M from the vehicle, while Ms ES tried to keep him inside the car, and that he resorted to punching the window of the car, causing it to smash.
Ms ES gave frank evidence that the effect of the incident where L was pushed away has stayed with her elder daughter, and to some extent submerged the more positive memories L had of her father. Ms ES also said that she would have no concerns, now, about Mr Nuuamoa being with the children; she did not think he would harm them.
In the extensive summonsed material from Child Protection (SGD, pp 648-732), as mentioned there is reference to three reports to Child Protection between April 2016 and September 2017. Concerns were raised regarding the Applicant perpetrating family violence towards Ms ES and substance abuse by both Mr Nuuamoa and Ms ES.
A “full exclusion Intervention Order” was in place listing Mr Nuuamoa as the respondent and Ms ES and the three children as the protected persons. As mentioned above, Mr Nuuamoa continued to breach the Order. Child Protection recorded that the oldest child, L, told officers she felt “upset and frightened at witnessing her father being violent.”
I note, and take into account, a letter dated 4 November 2020 that L sent to the Department in support of the restoration of her father’s visa, in which she states she does not believe her father would be a danger to the Australian community.
The Child Protection report goes on to relate that Ms ES undertook treatment and detoxification at Odyssey House and “did very well in the program”. Ms ES’s evidence was that she has been clean for 18 months and has regained custody of the three children (who had been in the care of their paternal grandparents). The Tribunal was impressed by Ms ES’s evidence and her determination, she said, to put the interests of the children first. She said she had, in the past, put Mr Nuuamoa’s interests ahead of those of the children.
The Respondent submitted that the Tribunal should find that it is in the best interests of the Applicant’s children for Mr Nuuamoa’s visa not to be restored, because of the past incidents of family violence. After careful thought, I am not prepared to make such a finding. While the family violence incidents are clearly very serious and both occurred in the full view of young children, there is other evidence from Ms ES and Ms AN, and the Applicant himself, of a good relationship with his children. Admittedly his contact more recently has been through telephone and video calls, but there was no evidence that this more recent contact has not been harmonious. It may be that the driver of the family violence was a combination of the Applicant’s alcohol and ‘ice’ additions, and his poor anger management.
I make a determination that it is in the best interests of the Applicant’s three minor children that the cancellation of the visa be revoked, but the weight that I attach to that is significantly lessened by the incidents of family violence to which the children have been exposed, and the enduring effect on them, especially L. The weight is also lessened because current Court orders prevent the Applicant living with the children, as he confirmed in his evidence. The Respondent submitted that Mr Nuuamoa would be able to maintain contact with his children through electronic means, as he does at present, if he was repatriated. I accept that as far as it goes but acknowledge that such arrangements are no substitute for personal contact, even supervised personal contact
In respect of the Applicant’s nieces and nephews, I note Ms ES’s evidence that she is currently caring for one of Mr Nuuamoa’s nieces, but there was no further evidence about this child. In respect of the others, the Applicant said that when in the community he would visit them around two times a week and often saw them at extended family events on Sundays. I consider that they would be affected to some extent, and no doubt disappointed, if their uncle was repatriated to New Zealand, but I make a determination that the weight that is attached to that is lessened because their relationship with the Applicant is non-parental (see paragraph 8.3(4)(a) of the Direction) and others fulfil parental roles.
Overall, the Tribunal finds that this primary consideration weighs slightly in favour of revoking the cancellation of the visa, but because of the incidents of family violence in the recent past, that weight is significantly diluted.
Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction states:
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 to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted 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, of the following kind:
…
The Direction then goes on to list specific sorts of conduct, one of which is explicitly relevant to Mr Nuuamoa’s criminal history. Paragraph 8.4(2)(a) refers to acts of family violence.
As the Direction says, the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A previous version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
The Court said that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other assessment or process of evaluation.
Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which is an acknowledgement of the approach taken by the plurality of the Court in FYBR.
Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.
Mr Nuuamoa’s periodic breaches of bail and suspended sentences and Orders designed to protect his family do not reduce the deemed weight this ‘community expectation’ consideration carries. The fact that he has a relatively good history of employment and has all his immediate and extended family in Australia would go to some extent in the opposite direction.
Overall, taking into account the assaults on strangers and the persistent breaches of measures designed to constrain and improve his behaviour, and his attacks (even if drug-fuelled) on his partner in front of their children, this consideration weighs against the Applicant.
The Tribunal finds that this primary consideration weighs relatively strongly against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has certain international treaty obligations which it must honour.
In the event the Tribunal affirms the decision, the Applicant would be repatriated to New Zealand, which is his country of citizenship. The Respondent submitted that this consideration was not relevant, and the Tribunal agrees with that submission. There were no submissions advanced by Mr Nuuamoa of any fears of potential harm from others if he was repatriated.
The Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments Mr Nuuamoa may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
The Applicant grew up in Auckland and spent his early childhood there, moving to Australia when he was aged around 14. He said he did not have strong memories of New Zealand. He said that he no longer has any relatives in New Zealand, a fact which was corroborated in her evidence by Ms AN.
Mr Nuuamoa agreed that he would not face language or cultural barriers in New Zealand. There was no evidence before me that he is not in good physical health. He would benefit strongly from structured drug and alcohol counselling when released into the community, and the Respondent submitted that such programmes would be available to him in New Zealand. There was no evidence before me that Mr Nuuamoa, as a New Zealand citizen, would not be able to avail himself of the range of social welfare services available to citizens of that country, should he need to.
I accept that there was no evidence that members of the Applicant’s family in Australia would be in a position to assist him financially and the Respondent properly submitted that he may face some hardship, at least in the short-term, should he be returned to New Zealand. Mr Nuuamoa told the Tribunal he ‘probably’ would be able to obtain work as a forklift driver in New Zealand.
I note that the Applicant has been quite industrious in undertaking a range of vocational courses in prison to improve his employment skills. A range of vocational certificates of attainment were in Exhibit A1. These would stand him in good stead in respect of opportunities for future work. I accept Ms AN’s evidence that she felt her brother would be ‘lonely’. Mr Nuuamoa in his own closing submissions expressed significant doubts that he would be able to cope if repatriated and speculated that he might ‘go down the wrong path’. There is always that possibility, but the evidence of his combatting his alcohol addiction and appearing, in the current environment, to overcome his methamphetamine use, shows that he does have the willpower to do so, albeit that has not been tested in the community..
Because of the lack of family support in New Zealand, the Tribunal finds that this consideration weighs very slightly in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of the Applicant’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean; first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker.
The Tribunal considers that Ms ES’s evidence that she wants the Applicant to remain in Australia is genuine, but it is conditional, as she made clear in her evidence, on his ceasing any illicit drug use and undertaking such courses as he can to deal with his anger management issues. The effect on Ms ES is dealt with elsewhere in these reasons.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider the impact of the decision on Mr Nuuamoa’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long the Applicant has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia. There were several letters in the documents before me from members of the Applicant’s family. These included his grandmother (GD, p 264), an aunt, a nephew, some of his sisters, and a friend who runs a takeaway food shop and intimates he could offer the Applicant work. I particularly note the letter from the Reverend Fai Sauni, pastor of the Pacific LMS Church of Australia (GD, p 268). All these letters express support for Mr Nuuamoa and urge that he should be allowed to stay in Australia.
Ms ES clearly wishes Mr Nuuamoa to stay in Australia, but I cannot ignore her careful evidence that her support for him is completely predicated on no return by him to alcoholism or illicit drug-taking. It is clear to me that she has overcome her addiction and is determined to stay ‘clean’ and protect and nurture her children. She does not support anything that might jeopardise that determination.
As mentioned above, the Applicant was aged about 14 when he first came to Australia. He started offending relatively soon after his arrival when aged around 17. His list of criminal offences is relatively lengthy for a young man. He has nonetheless made a positive contribution to Australia through periods of employment. There is also evidence of some voluntary work in tending the parish garden at the church he and his family attended.
I consider that the Applicant’s parents and his sisters and nieces and nephews would be adversely affected if he was deported. He said that all his sisters are Australian citizens. Given that Mr Nuuamoa has spent most of his life, and all his adult life, residing in Australia, I find that this sub-consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
While I accept Mr Nuuamoa has generally been employed as an adult, other than the times when he has been incarcerated, I do not consider that his work placements rise to the level contemplated by this part of the Direction. Whether he remains in Australia or not would not affect a major project or service in Australia. I therefore find this sub-consideration is not relevant.
However, I conclude that this consideration overall weighs in favour of revoking the mandatory cancellation of the visa because of the general effect Mr Nuuamoa’s removal would have on his immediate family.
CONCLUSION
The Tribunal has considered the primary considerations and other considerations set out in the Direction. I am not constrained only to the contents of the Direction in considering the exercise of the discretion under section 501CA(4) of the Act, but there were no submissions before me that any other factor may be relevant.
Three of the primary considerations weigh against revoking the mandatory cancellation of the visa. One primary consideration, the best interests of affected minor children, weighs very slightly in his favour. Of the other considerations, three have been found to weigh neutrally, one has been found to weigh slightly in favour of the Applicant, and one has been found to weigh moderately in his favour. Paragraph 7.1 of the Direction states that primary considerations should generally be given greater weight than the other considerations. Paragraph 7.2. goes on to say that a primary consideration may outweigh the other primary considerations. I am not satisfied the single primary consideration that weighs slightly in favour of the Applicant outweighs the primary considerations which weigh against revoking the cancellation. I am also not satisfied that this is a case where one of the other considerations which weighs in his favour outweighs a primary consideration.
In respect of the slight weight given to the primary consideration relating to the best interests of minor children, I make clear that the usual approach of the Tribunal is to weigh very strongly the parental link between children and a parent. However, this is a case where there has been a history of family violence, mainly involving the Applicant’s de facto partner, but also affecting the children. The Applicant made no attempt to minimise his past actions, but that candour does not make his conduct other than reprehensible. I note that Ms ES was adamant in answer to a question in the hearing that she would take their children to visit Mr Nuuamoa if his visa was not restored and he settled in New Zealand. Ms ES also did not close off the idea of moving with the children to New Zealand once Mr Nuuamoa had obtained employment and accommodation and established a base that she considered would be safe and secure for them.
The Tribunal, weighing all the considerations, both individual and cumulatively, has not found that the discretion available in section 501CA(4)(ii) of the Act is enlivened in this case. The consequence is that the decision under review was the correct decision.
DECISION
The Tribunal, under section 43(1)(a) of the AAT Act, affirms the decision under review.
I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 13 September 2021
Dates of hearing:
6 and 7 September 2021
Applicant:
Mr Mafoe Chanel Nuuamoa (Self-Represented)
Advocate for the Respondent:
Ms Sarah Thompson
Solicitors for the Respondent:
HWL Ebsworth Lawyers
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