Omani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 4119

Omani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4119 (28 November 2023)

Division:GENERAL DIVISION

File Number:          2023/6611

Re:Ma’ake Ilaiakimi Taukol Omani  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member A. Julian-Armitage

Date of Decision:               28 November 2023

Date of Written Reasons:      8 December 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 5 September 2023 to not revoke the mandatory cancellation of the Applicant’s visa.

...............................[SGD].........................................

Member A. Julian-Armitage

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category Temporary visa – whether the Applicant passes the character test – where the applicant has a substantial criminal record - whether there is another reason why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 99 – where Applicant’s offending included offences of actual violence -decision under review affirmed

Legislation

Administrative Appeals Tribunal Act1975 (Cth)

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member A. Julian-Armitage

8 December 2023

INTRODUCTION

1. Mr Ma’ake Ilaiakimi Taukol Omani (‘the Applicant’) is a 24-year-old man,[1] born in New Zealand on 20 March 1999. He initially arrived in Australia in February 2021. The visa he was granted upon that arrival was a Class TY Subclass 444 Special Category (Temporary) Visa (‘Visa’).[2]

   [1] R1, p 10, para 68.

   [2] R1, p 1, para 4.

2. On 6 December 2022, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), as he did not pass the character test and was serving a full-time custodial sentence.[3] On 22 December 2022, the Applicant made written representations to the Respondent requesting revocation of the cancellation of the Visa.[4]

   [3] Tr1, G12, p 42.

   [4] Tr1, G13, p 49.

3. On 5 September 2023, a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation.[5] This was delivered by hand to the Applicant on the same date.[6] On 7 September 2023, the Applicant lodged the instant application before this Tribunal seeking review of the non-revocation decision.[7] I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.

   [5] Tr1, G4, p 18.

   [6] Tr1, G3, p 9.

   [7] Tr1, G2, p 4.

4. The hearing of this application took place at Brisbane on 6 November 2023. The Tribunal heard oral evidence from both the Applicant and the representative for the Respondent, Mr Zachary McCaughan of Minter Ellison.

5. The Tribunal also received written evidence and the totality of that material was consolidated into an agreed Exhibit Register,[8] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.

   [8] Transcript, p 3, lines 43-45; p 4, lines 1-8.

   LEGISLATIVE FRAMEWORK

6. Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly, this provides that:

   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.

7. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.

8. There are, therefore, two issues presently before this Tribunal:

   (a)whether the Applicant passes the character test; or

   (b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.

   Does the Applicant pass the character test?

9. The character test is defined in subsection 501(6) of the Act. It stipulates that a person will not pass the character test if they have a ‘substantial criminal record’. In turn, a ‘substantial criminal record’ is where a person has been sentenced to a term of imprisonment of 12 months or more.[9]

   [9] See ss 501(6)(a) and 501(7)(c) of the Act.

10. The parties agree that the Applicant does not pass the character test[10] due to him being sentenced to a term of imprisonment of 12 months in 2022, with a parole release date of 27 January 2023.[11] Accordingly, I find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

    [10] A9, p 2, para 10; R1, p 2, para 14.

    [11] Tr1, G6, p 29.

    Is there another reason for the revocation of the cancellation of the Applicant’s Visa?

11. In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[12]

    [12] Direction No. 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

12. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision-maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    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.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

13. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

14. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

15. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

    The material before the Tribunal appears to indicate that the Applicant has not committed any offences in New Zealand.[13] However, whilst his criminal history in this country may be low in number, it is not insignificant as it features offences that, on the face of them, appear quite serious. In terms of sentencing episodes, the Applicant’s criminal history runs from June 2021 until October 2022, and spans 3 offences. The Applicant’s offending history may be summarised as follows:[14]

    [13] Tr1, G10, pp 38-39.

    [14] Tr1, G6, pp 28-29; G8, p 34.

Court	Date	Offence	Sentence
Dalby Magistrates Court	22/06/2021	Possession of a Knife in a Public Place or a School	Fined: $150.00 No conviction recorded
Southport Magistrates Court	27/10/2022	Assaults Occasioning Bodily Harm whilst armed/in company	Imprisonment: 12 months concurrent Parole release date: 27/01/2023 Conviction recorded
		Drive Without a Licence	Convicted and not further punished

1. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   (a)the nature and seriousness of the non-citizen’s conduct to date; and

   (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

2. I will consider each in turn.

   The nature and seriousness of the Applicant’s conduct to date

3. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)     violent and/or sexual crimes;

   (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

   (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

   Paragraph 8.1.1 considerations

4. Sub-paragraph 8.1.1(1)(a): this portion of the Direction stipulates that offences committed within the scope of sub-paragraphs (i), (ii) and (iii) are viewed “very seriously” by the Australian Government and the Australian community. The Applicant’s commission, and subsequent conviction, for acts of violence fall squarely within the parameters of sub-paragraph (i) and as such, militate in favour of a finding that the totality of his offending has been very serious.

5. Sub-paragraph 8.1.1(1)(b): this portion of the Direction refers to the sorts of crimes or conduct that may be seen as serious by the Australian Government and the community. The Applicant’s offending does not fall within the realm of the types of offences described in sub-paragraph (i) or (iv). In relation to sub-paragraph (iii) the Applicant’s conduct does not ground a finding that he does not pass an aspect of the character test which may be dependant on this decision-maker’s opinion.[15]

   [15] Paragraph 8.1.1(1)(b)(iii) of the Direction.

6. The Applicant has, however, committed offences against what was arguably a vulnerable person, the subject of the assaults which led to the Applicant’s incarceration. By his own admission in oral evidence, the Applicant agreed that his victim did not understand him when he was demanding an apology for having cut him off in traffic. This was later disclosed to have been that the victim did not speak English.[16] In addition, the Applicant acknowledged that his sheer size would have been most intimidating to the victim.[17] Given this, I am of the view that the victim of the Applicant’s assault could reasonably be viewed as vulnerable, thus the Applicant’s offending would also be caught by the provision in sub-paragraph (ii).

   [16] Transcript, p 13, para 1-19.

   [17] Transcript, p 21, para 34-46.

7. Sub-paragraph 8.1.1(1)(c): this sub-paragraph precludes me from taking into consideration sentences that the Applicant received for;

   (a)  any violent offending which may have been committed against women or children;[18]

   (b)  acts of family violence;[19] and

   (c)   any sentence imposed on him for conduct relating to him causing a person to enter into or become a party to a forced marriage.[20]

   [18] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [19] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [20] Paragraph 8.1.1(1)(b)(i) of the Direction.

8. None of the Applicant’s offending falls within the ambit of this sub-paragraph (c). Therefore, the remaining offences are:

   ·Possession of a knife – no conviction recorded and fined $150;[21]

   ·Driving without a licence - conviction recorded with no further penalty.[22]

   [21] Tr1, G6, p 28-29.

   [22] Tr1, G8, p 34.

9. The nature of the above sentences which were imposed on account of the non-precluded offences do not represent significant sentences commensurate with what would be considered serious offending. Notwithstanding this, they are reflective of the Applicant’s ignorance of the laws in this country and his blatant recklessness in not informing himself in relation to his legal responsibilities in this country. These sentences are reflective of a lack of frequency and do not, in isolation, reflect the nature and seriousness of the Applicant’s offending in the country.

10. Sub-paragraph 8.1.1(1)(d): there are two aspects that arise in relation to this sub-paragraph. The first is an assessment of the frequency of the Applicant’s offending which, on the face of it, cannot be considered frequent. The other aspect is whether the offending reflects an increase in seriousness. It is without question that the offence of Assaults occasioning bodily harm whilst armed and in company, which resulted in the 12-month custodial sentence on 27 October 2022 is undeniably an increase in seriousness. This conduct supports a finding that the nature of the Applicant’s offending has been very serious.  

11. Sub-paragraph 8.1.1(1)(e): This subparagraph requires that I consider the cumulative effect of repeated offending. I find that the cumulative effect of the Applicant’s offending to be serious due to the sheer nature of the offending which had involved the expenditure of Police and Court resources. In addition, his violent conduct towards his assault victim was utterly and unrelentingly brutal and without any consideration for the victim’s position. The Applicant expressed regret for his action throughout the hearing of this matter, but only in terms of how he has let himself and his family down. He only mentioned the victim when this Tribunal prompted him to consider what the victim must have experienced and how horrific it must have been for him. The excuse for his actions was that he had a 6-month-old child in the car when he perceived that the victim’s car nearly ran into him. Notwithstanding this, I agree with the views expressed by the sentencing Magistrate[23] that the behaviour of the Applicant was not reasonable, rational or proportionate in the circumstances. I find the Applicant’s conduct utterly disgraceful and cumulatively in favour of a finding that his offending in this country has been very serious.

    [23] Magistrate Dooley, see G7, p 32.

12. Sub-paragraph 8.1.1(1)(f): there is nothing to suggest that the Applicant has engaged in conduct that would be relevant to this sub-paragraph.

13. Sub-paragraph 8.1.1(1)(g): the material in relation to this matter does not contain anything to suggest that a formal warning about the consequences that re-offending could have on the Applicant’s right to remain in Australia. This is in all probability due to the relatively short period of time that he has resided here. Hence this sub-paragraph has no relevance.

1. Sub-paragraph 8.1.1(1)(h): there is no evidence that shows any conviction against the Applicant in his native New Zealand. Thus, this sub-paragraph is not relevant.

   Conclusion about the nature and seriousness of the Applicant’s conduct

2. I have applied the evidence, both oral and in written form, to each of the relevant paragraphs contained in 8.1.1(1) of the Direction. I am satisfied that the applicable paragraphs have led me comfortably to the finding that the Applicant’s unlawful conduct in this country has been very serious.

   The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

3. Sub-paragraph 8.1.2(1) provides that in considering the need to protect the Australian community from harm, a decision-maker should have regard to 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

4. Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   (i)     information and evidence on the risk of the non-citizen re-offending; and

   (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

   (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

   The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

5. Whilst the Applicant’s offending may not be considered numerous, it has been, without a doubt, extremely violent in nature. If he were to reoffend, along the same violent vein and degree of violence towards another victim or victims, it is not beyond the realms of probability that the resultant harm could possibly lead to a serious and permanent disability or fatality. This is particularly so should he choose to carry a knife in future.

6. Consequently, I harbour no difficulty in determining, and so find, that should the Applicant’s violent offending be repeated, it could give rise to a level of harm, both physical and psychological, to such a serious level that the risk of this type of re-offending would be deemed unacceptable by the Australian community.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct

7. Whilst this Tribunal is cognisant of the Applicant’s expressed remorse for his offending, I am not convinced that he has undertaken sufficient rehabilitative treatment to address his behaviour and subsequent offending which could lead to further and similar conduct should he be released into the community. I have formed this view on the basis that he re-offended while he was on bail.[24] Furthermore, this Tribunal has not had the benefit of a clinical report in relation to recidivism, with only the Applicant’s oral evidence that he will not re-offend. I am not persuaded that he would be able to contain his temper should similar circumstances arise to those when he committed the assault.

   [24] Driving without a licence.

8. I acknowledge that the Applicant has attempted to address his anger by way of counselling in the lead up to his sentencing for the assault and whilst in custody. However, I am far from satisfied that he has been wholeheartedly committed to his rehabilitation given that he applied for psychological intervention in detention but failed to attend 3 out 4 appointments that were made for him. In addition, he has undertaken a number of courses that were targeted at issues outside of the reasons he has given for offending.[25] Of note with respect to these courses is the Drug and Alcohol 101 course, domestic violence, and an online course called “Man up.”[26]

   [25] His oral evidence was that his anger was due to childhood trauma, and when the Tribunal had requested specific information, his answer was the trauma was with respect to him being raised in poverty and living in a poor neighbourhood. See Transcript, p 55, line 1-31.

   [26] Tr1, G21, 94-96, G21 97.

   Assessment of recidivist risk

9. Given my findings above, I am not confident that, given the limited rehabilitation he has undertaken, that the Applicant is safe from relapsing into offending behaviour. Therefore, I find that the only safe conclusion is that his level of recidivist risk is unknown and, as such, an unacceptable risk to the Australian community.

   Sub-paragraph 8.1.2(2)(c)

10. This sub-paragraph in the Direction is not relevant in the decision-making process in this application.

    Conclusion: Primary Consideration 1

    In relation to the weight attributed to this Primary Consideration 1, I have found:

    (i)  That the nature and the seriousness of the Applicant’s offending, on a totality basis, in this country has been very serious;

    (ii)  That if the Applicant were to re-offend, the consequences of such offending could result in very serious physical and psychological harm to his victim/s, with the potential to cause a fatality given the level of his violent offending;

    (iii)  That the Applicant’s recidivist risk to be unknown and as such an unacceptable risk to the community.

11. Based on all the evidence before me, including the Applicant’s oral evidence, I find that this Primary Consideration 1 confers a heavy weight against revocation of the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

12. I am satisfied, and the parties agree, that this Primary Consideration 2 is not applicable.[27] I allocate neutral weight to this consideration.

    [27] R1, p 7, para 42; A9, p 14, para 48.

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

13. The Direction requires decision-makers to have regard to the strength, nature and duration of an applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.

14. In the course of the hearing, the Applicant was questioned in relation to his family members in Australia who can be considered with respect to Primary Consideration 3, including any minor children. The Applicant stated that he has a younger and an older brother in Australia, together with extended family members including three aunts and uncles, two nephews/nieces and three cousins. He did not provide any names of his siblings nor did he describe the relationship he has with them. The rest of his immediate family, consisting of his parents and another two brothers and two sisters, reside in New Zealand.   

    Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members

15. The Applicant claims to have been living with Ms Tahlia Murphy (with whom he says he was in a de facto relationship), and her 2 minor sisters prior to his incarceration. However, he advised the Department of Home Affairs that the relationship had ended sometime in August 2023[28] and he has had no further contact with either Ms Murphy or her sisters.

    [28] Tr1, G37, 125-126.

16. In respect to his siblings here in Australia, there was no cogent evidence led so that an assessment could be made as to the impact this decision would have on the Applicant’s Australian-resident siblings.

    Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely

17. There was little evidence led in relation to the relationships the Applicant has with his sibling and other extended family members who are presumably either Australian citizens or have the right to remain indefinitely in this country. I note that the Applicant had a 6-month-old child belonging to his brother in the vehicle he was travelling in on the day of the assault offence. However, there has been little to no evidence of the nature of his relationship with this child, nor was there any suggestion that he plays a significant role in that child’s life. In the circumstances, I am unable to attribute more than a slight amount of weight, but not determinative, in the Applicant’s favour.

    Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally

18. The Applicant has tendered evidence of ties that he has to Australia, namely by way of various letters of support. Whilst the Applicant may contend that he has these ties to family and social links, the fact remains that he had only been in Australia for a period of 3 months before offending. Since then, he has been either incarcerated, or in immigration detention. As such, these social and familial links, to the extent that they exist, cannot be attributed a great deal of weight in favour of revocation of the mandatory cancellation of the Applicant’s visa in the instant case.

    Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here

19. This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:

    (a)whether the Applicant has been ordinarily resident here during his formative years.

    It is clear that the Applicant has lived in Australia since he was 21 years of age. It is therefore not safe to find that the Applicant has ordinarily resided in Australia during his formative years. Consequently, this component of the Direction does not lend itself to an allocation of any weight towards establishing the Applicant’s ties to Australia, on the basis that he has not spent his formative years here.

    (b)whether the Applicant has positively contributed to the Australian community during his time here.

    The Tribunal received evidence that the Applicant has worked as a casual labourer between August 2022 and October 2022. Further, the Applicant appears to have an employment position available to him, if he were to be released from immigration detention.[29] I am not satisfied that the Applicant has applied himself to making a positive contribution to the Australian community, and thus, subparagraph 8.3(4)(a)(ii) of the Direction does not speak favourably to the strength, nature and duration of the Applicant’s ties to Australia.

    (c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?

    As mentioned in the above reasons, in reference to the first question, I have already found that the Applicant has not spent his formative years in Australia. In relation to the second question, the Applicant began offending some 3 months after his arrival in Australia. Therefore, paragraph 8.3(4)(a)(iii) impugns any strength, nature and duration of the Applicant’s ties to Australia.

    [29] Tr1, G36, p 124.

20. Based on the evidence relevant to subparagraphs 8.3(4)(a)(i)-(iii) of the Direction, I find that the Applicant’s ties to the Australian community provide him with little weight in his favour, having regard to (1) that he did not spend his formative years here; (2) that he began offending very soon after his arrival; and (3) that he has a limited work history and very small contribution to the Australian community.

    Conclusion: Primary Consideration 3

21. I have analysed the 4 relevant components of this Primary Consideration 3, and am of the view, that the relevant evidence to each of the components in total lead me to find that this Primary Consideration 3 is of very limited weight in favour of the exercise of the power to revoke the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

22. I must determine whether the non-revocation of the Applicant’s Visa would be in the best interests of minor children in Australia that would be affected by the decision (per paragraph 8.4(1) of Direction 99). This primary consideration only applies with respect to children under the age of 18 years at the time of the decision (paragraph 8.4(2) of Direction 99).

23. At the outset, the Tribunal notes that the Applicant does not have any biological children in Australia.[30] Throughout the hearing, the Applicant was provided the opportunity to inform the Tribunal of any minor children that would be affected by a non-revocation decision. The Applicant confirmed that he has a niece and a nephew in Australia, and another niece or nephew presumably in New Zealand. However, when questioned, the Applicant could not name them, nor provide their ages with any certainty.[31] Further, the Applicant admitted that one of the children that he had cited in his initial application for revocation to the Department had in fact not yet been born at the time of that statement.[32] The paucity of the Applicant’s evidence with respect to minor children is illustrated by the following exchange:[33]

    [30] A9, p 17, para 56.

    [31] Transcript p 46, lines 18-43.

    [32] Transcript p 47, line 16.

    [33] Transcript p 46, lines 18-47; p 47, lines 1-18.

    MR McCAUGHAN: You also noted that you had two nieces and nephews?

    APPLICANT: Yes.

    …

    MR McCAUGHAN: You know who you’re talking about with those two people?

    APPLICANT: It’s my older brother’s kids.

    MR McCAUGHAN: Your older brother’s kids. Do you know how old they are, Mr Omani?

    APPLICANT: I think one’s 4, and one’s a newborn 7 months.

    MR McCAUGHAN: Now is that currently?

    APPLICANT: Yes

    MR McCAUGHAN: So one is currently seven months old?

    APPLICANT: Or one year, I’m not too sure.

    MR McCAUGHAN: … it would be curious if one of the children is seven months old today when they were described in a document 10 and a half months ago?

    APPLICANT: She was carrying at that time.

    MR McCAUGHAN: So you included pregnant people in this statement?

    APPLICANT: Yes.

24. Further, it is noteworthy that not only is there no clear evidence of any close relationship, but nor is there any suggestion that the Applicant plays a parental role to any minor children.

25. Based on the evidence, I am not satisfied that it is in the best interest of minor children that there be a revocation of the mandatory cancellation of the Applicant’s visa. Primary Consideration 4 is of slight weight in favour of the exercise of the power to revoke the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 5:  EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

26. The Direction makes it clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[34] The Direction further explains:

    ‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[35]

    [34] Paragraph 8.5(3) of the Direction.

    [35] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

27. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

    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.

28. This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

29. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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 or elsewhere, of the following kind:[36]

    (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 this 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.

    [36] Paragraph 8.5(2) of the Direction.

30. As stated in the above reasons, in considering Primary Consideration 1, I have considered the assault victim to be a vulnerable member of the community, based on the inequality of size (the Applicant is of imposing stature), and the fact that the victim was harbouring under a limited capacity of the English language. Consequently, in the circumstances, the Australian community would expect that the Australian Government can, and should, revoke the Applicant’s visa.

31. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    The Applicant did not hold a limited stay visa. Therefore, this aspect of the provision is not relevant.

    (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[37]

    [37] Paragraph 5.2(4) of the Direction.

    As mentioned above, the Applicant commenced his criminality on a very serious level, after a very short period of time following his arrival in Australia. As such, this is of no relevance.

    (c)Australia will generally 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;[38]

    The Applicant has not lived in the Australian community for most of his life or from a very young age. Therefore, this aspect of the provision is not relevant.

    (d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;

    As mentioned in above reasons, I have already found that the Applicant has not spent his formative years in Australia. The above findings also confirm that the Applicant has not spent a great length of time in Australia, meaning that this aspect of the provision is not relevant.

    (e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[39] and

    I have found the Applicant’s conduct to be serious. Were the conduct to be repeated, it could cause a disfigurement, or even a fatality, to the victim.

    (f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    There are no strong countervailing considerations to assist the Applicant in the instant case, therefore, this aspect is not relevant.

    Conclusion: Primary Consideration 5

    [38] Paragraph 5.2(5) of the Direction.

    [39] Paragraph 5.2(6) of the Direction.

1. Based on the above, I am of the view that Primary Consideration 5 confers a heavy level of weight in favour of the Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s visa.

   OTHER CONSIDERATIONS

   Other Consideration (a): Legal consequences of the decision

2. To the extent that I have understood the position of the parties, neither has raised the relevance of this Other Consideration (a). Therefore, I allocate neutral weight to it.

   Other Consideration (b): Extent of impediments if removed

3. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the following:

   (a)the non-citizen’s age and health;

   The Applicant is 24 years of age, with no stated physical health issues, or any physical ailments or infirmities of note. He claims to have suffered childhood trauma, however, when questioned about this trauma, he stated that it was due to growing up in poverty.[40] Whilst there is evidence of the Applicant seeing a psychologist, Monica Farrow,[41] with whom the Applicant completed 4 sessions, the childhood trauma apparently suffered by the Applicant was mentioned without any detail being provided.

   (b)whether there are any substantial language or cultural barriers; and

   The evidence is silent as to any substantial language or cultural barriers impeding the Applicant’s resettlement in New Zealand. New Zealand is culturally similar to Australia, and there would be no cultural or linguistic barriers if the Applicant was referred to New Zealand.[42] He is 24 years of age and has spent the entirety of his life, save for the past 3 years, in New Zealand.

   (c)any social, medical and/or economic support available to that non-citizen in that country.

   This subparagraph looks for any social, medical and economic support available to the Applicant in New Zealand. Should he require any medical support, or treatment for his childhood trauma, there is no impediment from access to such publicly available medical support to the same extent as other citizens enjoy in New Zealand. Similarly, economic support in New Zealand would also be available to him. It is safe to find that he would be able to find labouring work in New Zealand. As he has stated, the majority of his family are in New Zealand, and presumably, can provide him with social support.

   I am of the view and find that this Other Consideration (b) provides little to no weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s visa.

   [40] Transcript p 55.

   [41] Tr1, G22, page 107.

   [42] See Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301, [101].

   Other Consideration (c): Impact on victims

4. Neither party has raised the relevance of this Other Consideration (c), therefore, it shall be treated neutrally in terms of weight.

   Other Consideration (d): Impact on Australian business interests

5. This consideration compels an assessment of Australian business interests as a consequence of the Applicant’s removal from Australia. Neither party has raised the relevance of this Other Consideration (d). I therefore allocate a neutral weight to this Other Consideration (d).

   Findings: Other Considerations

6. The application of the Other Considerations in the present matter can be summarised as follows:

   (a)Legal consequences of the decision: is of neutral weight.

   (b)Extent of impediments if removed: is of little to no weight in favour of revoking the mandatory cancellation of the Applicant’s visa.

   (c)Impact on victims: is of neutral weight.

   (d)Impact on Australian business interests: is of neutral weight.

   CONCLUSION

7. Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

8. In considering whether I am satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

   ·Primary Consideration 1: is to be allocated a heavy weight against revoking the mandatory cancellation of the Applicant’s Visa.

   ·Primary Consideration 2: is to be allocated a neutral weight.

   ·Primary Consideration 3: is to be allocated a very limited weight in favour of revoking the mandatory cancellation of the Applicant’s Visa.

   ·Primary Consideration 4: is to be allocated a slight weight in favour of revoking the mandatory cancellation of the Applicant’s Visa.

   ·Primary Consideration 5: is to be allocated a heavy weight against revoking the mandatory cancellation of the Applicant’s Visa.

9. I have found that the combined weights I have allocated to Primary Considerations 1 and 5 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 2, 3 and 4.

10. A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 5 September 2023.

    DECISION

11. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 5 September 2023 to not revoke the mandatory cancellation of the applicant’s visa.

    I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member A. Julian-Armitage.

    .................[SGD]......................

    Associate

    Dated: 8 December 2023

    Date of Decision:   28 November 2023

    Date of Hearing:   6 November 2023

    Representative for the Applicant:      Self-represented

    Solicitor for the Respondent:             Zachary McCaughan, Minter Ellison

    “ANNEXURE A”

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
Tr1.	Section 501 G-Documents (G1-G38; pp 1-154)	R	-	18.09.2023
Tr2.	Supplementary Section 501 G-Documents (S1-S12; pp 1-274)	R	-	17.10.2023
R1.	Respondent’s Statement of Facts, Issues and Contentions	R	17.10.2023	17.10.2023
R2.	Respondent’s Closing Submissions	R	10.11.2023	10.11.2023
A1.	Statement of Ashely Tai	A	-	26.09.2023
A2.	Character Reference written by Elaine Latu	A	03.10.2023	03.10.2023
A3.	Interrelate Correspondence and Information	A	-	11.10.2023
A4.	Support Letter of Leilani Georgievski	A	17.10.2023	18.10.2023
A5.	IHMS Clinical Record	A	-	27.10.2023
A6.	Support Letter of Lubomir Georgievski	A	-	31.10.2023
A7.	Support Letter of Anna Ahosivi	A	-	31.10.2023
A8.	Applicant Letter of Remorse	A	-	31.10.2023
A9.	Applicant’s Closing Submissions	A	-	09.11.2023