Parata (Migration) - [2022] AATA 1149

Parata (Migration) [2022] AATA 1149 (21 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Karl William Parata
CASE NUMBER:  2119266
HOME AFFAIRS REFERENCE(S):          BCC2018/4065305
MEMBER:Kate Millar
DATE:21 March 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 21 March 2022 at 5:50pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to health, safety or good order of community or segment of community – extensive criminal history, imprisonment, suspended sentences and community corrections orders – discretion to cancel visa – long residence from young age – relationships and children, alcohol and drug use, and mental health diagnosis and treatment – total of sentences now exceeds 12 months – possibility of cancellation on that ground – strong family ties and best interests of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e), (3), 119, 359AA
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
DXQ16 v Minister for Immigration [2020] FCA 1184
Fang v MIMIA [2004] FCA 1387
Gong v MIBP [2016] FCCA 561
MICMSMA v Parata [2021] FCAFC 46
MIEA v Guo (1997) 191 CLR 559
Uelese v MIBP [2016] FCA 348
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Parata is a citizen of New Zealand who came to Australia when he was seven years old, and who is now 47. Mr Parata held a Subclass 444 visa until it was cancelled on 20 September 2018.
Mr Parata has had a difficult life, and says his upbringing was affected by the drug and alcohol problems of the adults around him, and the need for him to care for his younger brother. Mr Parata developed drug and alcohol problems and has been diagnosed with a mental illness.
Mr Parata has been convicted of a number of offences over several years commencing in 1996. His offences include unlawful assault, property damage, breaches of domestic violence orders and contravening community-based orders.
On 13 March 2018, Mr Parata was convicted of unlawful assault, breaching a family violence safety notice and contravening a community corrections order. He was sentenced to a term of imprisonment of four months. After his release he was charged on 12 July 2018 with contravening a family violence final intervention order.
Following this charge, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled his visa because the delegate found that Mr Parata is a risk, or may be a risk, to the health, safety or good order of the Australian community or a segment of the Australian community.
Mr Parata applied to this Tribunal for a review of the decision. Shortly after his application was lodged, the Tribunal found it did not have jurisdiction because the application had not been lodged within the time required with the prescribed fee. Mr Parata appealed this decision.
The matter was remitted to the Tribunal for reconsideration because the notification of the decision did not specify whether Mr Parata could seek review under Part 5 or Part 7 of the Act as required by s 127(2)(b) of the Migration Act 1958 (the Act), and therefore the time in which he was required to make an application had not commenced.[1] Mr Parata lodged his application for review from prison and it was not on the prescribed form or accompanied by the prescribed fee. The Tribunal wrote to advise Mr Parata what was required to lodge his application, but he had been moved between prisons and did not receive this advice on the day it was sent. The Full Federal Court dismissed the Minister’s appeal and leave to apply to the High Court was refused.
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
The outcome is that because Mr Parata was not correctly notified of the decision of the delegate, the time for him to lodge an application for review and pay the required fee has not commenced. He has since lodged the application with the correct form and paid the required fee, and the Tribunal has jurisdiction to consider his application.
Mr Parata appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his ex-partner, Ms Bonnie Collett.
CONSIDERATION OF CLAIMS AND EVIDENCE
The is an application for review of a decision dated 20 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The delegate cancelled the visa under s 116(1)(e) on the basis that Mr Parata is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Notice issued under s 119 of the Act
Section 119 of the Act requires that if the Minister is considering cancelling a visa under s 116, the Minister must notify the person that there appears to be a ground for cancelling it, giving particulars of the ground and the information on which the ground appears to exist (among other things).
The notice issued to Mr Parata under s 119 of the Act advised he had been charged with contravening a family violence final intervention order and provides details of the charge. He is advised that Victoria Police informed the Department that he has an extensive criminal history commencing in May 1996 with charges of multiple counts of breaching intervention orders, contravening suspended sentences, unlawful assault, intentionally damaging property, recklessly causing injury and failing to answer bail. It states he has been sentenced to community corrections orders and periods of imprisonment, including suspended sentences that add up to over 16 months. It lists recent convictions on 13 March 2018 for unlawful assault, contravening a family violence safety notice, contravening a community corrections order, criminal damage (intent damage/destroy) and unlawful assault.
What this notice does not do is provide a record of the court, date of outcome, charges, counts and convictions that were listed in the decision of the delegate.
In this case, Mr Parata has stated that many of the convictions were repeated in his record because they were called up following a breach of the community corrections order or suspended sentence.
The absence of a complete list of offences in the notice issued under s 119 resulted in a failure to provide the particulars and denied Mr Parata the opportunity to respond to the record of convictions.
Mr Parata provided the decision record to the Tribunal, which included the list of convictions. The list of convictions recorded by Victoria Police was also provided to Mr Parata before the hearing and he was invited to comment on the convictions prior to the hearing. The convictions were also examined at the hearing. This means the defect in the notice was cured on review as Mr Parata has had the opportunity to respond to these particulars.[2]
[2] Fang v MIMIA [2004] FCA 1387
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
The ground in s 116(1)(e) involves a degree of speculation about Mr Parata’s future conduct and whether he may be a risk in the future. In looking to what may happen in the future, the Tribunal has examined what has happened in the past as “past events are not a certain guide to the future, but in many areas of life proof that events occurred often provides a reliable basis for determining the probability – high or low – of their occurrence”.[3]
[3] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 see also Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730
Mr Parata’s offending history is contained in the decision record of the delegate. While Mr Parata provided the decision record, his criminal record was again provided to him prior to the hearing, and he was invited to comment on his offending history prior to the hearing.
Mr Parata’s offending commenced in 1996 and 1997 with convictions for behaving in an offensive manner in a public place and wilfully damaging property. He said this resulted from an incident where he was drunk and tried to use a public phone after leaving a nightclub. As he did not have any money, it did not work. He smashed the receiver down, breaking it.
The first series of domestic violence orders commenced in December 2001, with convictions for breaching an intervention order, wilfully damaging property and assault. Mr Parata failed to appear in Court on 18 December 2001, and a warrant was issued for his arrest. He was sentenced to a community-based order on 12 June 2002, which he subsequently breached and was fined for the breach in September 2002.
Mr Parata said the mother of his second child had another partner who made it difficult for him to see her. He said he put his fist through the windscreen of the mother’s car, breaking it out of frustration after she mother said he could only see his child if the visits were supervised by her. He said he was sentenced to 60 hours of community work to do over six to 12 months, and he attended the first time, but then had to work and thought he could do the community work at a later time.
The next series of domestic violence offences commenced with convictions for breaching an intervention order and criminal damage on 13 November 2007. Mr Parata was sentenced to imprisonment for three months, with the sentence suspended for two years. These charges repeat in the criminal history due to Mr Parata breaching the suspended sentence order.
A new conviction for recklessly causing injury and failing to answer bail appears in 2009, and together with the previous convictions resulted in a suspended sentence of imprisonment of two months.
Mr Parata said that this series of offences affected him the most. He said he was in a bad relationship, with a person who self-harmed. He was trying to leave the relationship but had to try and stop her from hurting herself. He was put in jail for a week because his partner had a bruise on her forehead, which was self-inflected. As he was in jail, he lost his job. He found another job but was sentenced to a corrections order because of bruising on his partner’s arms. His new job was with a flooring company, but he didn’t know where he was working day to day, and this made it difficult to get to his Friday corrections appointment. He was told that he could advise his corrections officer if he was working, but at the end of the 12-month period he had not attended enough corrections appointments and was breached. He did not know about the breach until 2012 when it came up again when a warrant was issued for his arrest. He said the record of convictions in 2012 and 2016 relate to the same offences. The breach of the community-based order was found proven in 2012. In 2016 the charge of contravening his suspended sentence order was found proven and the sentence was wholly restored. He was imprisoned for four months and was given a corrections order on release.
In March 2016, he was convicted of criminal damage and unlawful assault ,and sentenced to a corrections order for 12 months and to undergo testing and rehabilitation for drug abuse or dependency, mental health assessment and treatment, and offending behaviour programs. Mr Parata said there was a breach of a family safety notice following his partner being removed from the house, after which the police returned and removed him from the house. He said he had pets at the house and no arrangements had been made for the pets, so he returned. The police were watching the house and he was charged with a breach of a family safety notice. The convictions recorded are two counts of contravening a family safety notice and one count of assault. This is not consistent with his account of merely returning to feed his pets.
Mr Parata said the corrections order resulted in appointments in Cranbourne, which was an hour and half away by public transport. He tried to have the appointments changed to Dandenong which was closer to his house but was breached again and served another four-month term of imprisonment. On his release he was given another corrections order which was breached immediately after his release. In 2018 he was sentenced for this breach to a community corrections order for 12 months, and to undergo treatment and rehabilitation, offending behaviour programs and a men’s behaviour change program.
In October 2016, Mr Parata was convicted of criminal damage and unlawful assault. Mr Parata said that an order was in place and his partner left the house in a mess with unfolded washing. He said he was charged when he had not made the mess in the house. His account is not consistent with being charged with criminal damage and unlawful assault.
On being asked about the convictions in 2018 for unlawful assault and contravening a family violence safety notice, Mr Parata said he wasn’t sure where the assault came from as no-one was assaulted.
In September 2018, Mr Parata was charged with contravening a family violence final intervention order. The breach occurred when his ex-partner picked him up after he was released from prison and took him to her home. Mr Parata said his corrections officer could not locate him, and he was located by police at the house six days later. Mr Parata said after his visa was cancelled, he was convicted of this offence and sentenced to imprisonment for two and a half months.
Mr Parata attributes the convictions in 2016 and 2018 to his drug use and the toxic relationship at the time.
Ms Collett, Mr Parata’s previous partner, gave evidence to the Tribunal. On being asked about the family violence orders, Ms Collett said they initially had a family violence order where Mr Parata could still live at the house if they did not argue, but this did not work and so a family violence order was made with the usual requirements. Ms Collett said she was forced to get a family violence order by her children’s paternal grandmother because this was raised when efforts were made to remove the children from her care. She said her children were ultimately removed from her care by an order of the Court as it was deemed Mr Parata was a risk to them, even though he was in prison at the stage.
Ms Collett said Mr Parata was in prison following an incident where he broke a bottle on the shelf in the bedroom. The glass ricocheted, hitting her in the face. Ms Collett said that because there was water in the bottle it “made it look much worse than it was” as “you bleed more from your face.”
Ms Collett’s evidence was put to Mr Parata under s 359AA of the Act, as if the Tribunal relied on this information it would find that he was a risk to a segment of the Australia community, namely women with whom he was in a relationship. This was relevant to whether the ground in s 116(1)(e) is established, and also relevant to the exercise of the discretion to cancel his visa.
Mr Parata said that he was a distance from Ms Collett, estimating one and a half to two metres away. He said the bottle smashed into a plate and a shard hit Ms Collett in the face. He said he did not intend to injure her, and it looked worse than it was as once the blood was cleaned away it was only a small puncture wound. He said he did not intend to hurt her. On being asked what effect he thought this would have on Ms Collett, he said it would have scared her, but that he didn’t realise she was that upset.
Mr Parata was also asked under s 359AA to comment or respond to the information from Ms Collett that her children were removed from her care because of his presence in the household. Mr Parata said the children’s grandmother worked for children’s services and “used that” to take the children. He said the children should not have been removed, and that the father of the children also had a child removed from his care. He said the children were removed after he was in prison and he was not sure how that happened, but they “pulled a lot of strings.”
The Tribunal does not accept that Ms Collett’s children would be removed from her care by a Court in the absence of evidence. It also does not accept the personal influence of the children’s grandmother would achieve this result. The children have been returned to Ms Collett’s care after Mr Parata was most recently imprisoned and put in immigration detention.
Mr Parata said he was not subject to orders to attend rehabilitation programs. He was referred to the decision record of the delegate which cites the sentence imposed on 13 March 2018 as including orders to undergo treatment and rehabilitation, offending behaviour programs and men’s behaviour change programs. He said he was supposed to see a woman a couple of suburbs away, but she didn’t make appointments for him. He said he was required to do an anger management course in 2009 and was ordered to do drug counselling. He said he did not attend. He did not attend any programs while in prison.
Mr Parata said he went to a drug and alcohol counselling service in 2008 for approximately six months and in 2009 for approximately one and a half months. He said while he returned to using drugs after this rehabilitation, his alcohol use is controlled.
Mr Parata said he has addressed his use of drugs by abstaining from using drugs while in immigration detention despite drugs being readily available. He is to be commended for his abstinence, which is now a lengthy period. However, the Tribunal does not consider this period of abstinence from drugs sufficient in itself to establish that he is not or will not be a risk to the health and safety of others in the community, in particular in his domestic relationships.
The nature of the ground in s 116(1)(e) requires the Tribunal to make a prediction about Mr Parata’s current behaviour, and also a prediction about his future behaviour. Mr Parata is currently in immigration detention and is not currently a risk to the Australian community. There is no information to show he is a risk to others in detention.
Mr Parata has consistently understated his actions, for example, saying he was never violent towards his partner, while acknowledging he hit the windscreen of a car causing it to smash, and that he broke a bottle near Ms Collett causing glass to ricochet and injure her. His explanation for convictions for property damage and unlawful assault as being returning to feed his pets, or the house being left in a mess are not plausible. His actions are not as benign as he states, and his frustration about seeing his children provides no excuse for his behaviour. Mr Parata has continued to breach intervention orders and has failed to comply with community-based orders or suspended sentences over a lengthy period of time.

Mr Parata has not addressed his propensity to act with aggression towards women when he is in a relationship. While he has ceased his drug use while in prison and in immigration detention, he has not undertaken any courses or rehabilitation on anger management or family violence that mitigates this risk.
Mr Parata may be a risk to the health and safety of people in the community. In particular, given his previous offending, he may be a risk to both his previous and potential future domestic partners. That there is a risk of children in the household is shown by the removal of Ms Collett’s children.
The Tribunal is satisfied that the ground for cancellation in s 116(1)(e) exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Migration Regulations 1994 (Cth) that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3), ‘General visa cancellation powers’.
In his response to the Department, Mr Parata states he arrived in Australia in 1982 at the age of seven to live with his mother. He has done all of his schooling in Australia except for Year 12. He returned to New Zealand to complete Year 12 in 1993.
In his submission to the Tribunal, Mr Parata states his life has not been the most stable, with his parents separating when he was four years old. He states his only memories are of his parents fighting due to is mother’s drinking. He said on his fourth birthday his mother was drinking inside and he was run over in the driveway by the 4WD driven by one of the visitors. He lived with his mother and her often abusive partner, or with his father at his grandmother’s house.
When he was seven years old, he came to Australia with his mother, and they travelled a lot due to his mother’s partner’s job. His mother and her partner were drinking a lot and using drugs, and he was often responsible for other children at parties and had to learn to cook for himself. His half-brother was born when he was 12 and he then became a baby-sitter and was blamed by his mother’s partner who “took to him with his fists” if the baby cried. His mother and her partner separated when he was 16, but his mother’s drinking increased and there were constantly adults drinking and using drugs in the house. When he was 18 he chose to return to New Zealand to finish high school and lived with his father for a short period before he was left with his grandmother. His grandmother has now passed away, and his father died in 2020.
Mr Parata states drug and alcohol use has been a feature of his life and became worse as an adult, resulting in relationships with different women. He states the women were physically and verbally abusive. He states he took out his frustrations by drinking and punching the wall. He states he did not lay hands on his partners as that type of violence has never been something he did. He states even fighting other males is something he only did to defend himself or aid friends.
He has four children. His eldest was born in 1996, and Mr Parata had separated from her mother before she was born. He had some contact with his daughter until she was three months old, after which her mother relocated her to Queensland. Mr Parata says this was a result of him seeking legal advice about access to his daughter. He has not had any contact since.
His second child was born in 1997 and he states they are very close. After he separated from her mother, it was hard for him to have access to his child, so he turned to alcohol and drugs, and was then charged with offences relating to family violence as he put his fist through her mother’s windscreen after a discussion about access. Mr Parata said his second child lived with him for approximately a year, and he speaks to her every week or fortnight.
His two youngest children were born in 2002 and 2004. He was able to have access to these children at his mother’s house as his mother saw them weekly.
Mr Parata says he was diagnosed with bipolar disorder in 2006. He has taken medication for his mental health from 1997. Medical records summonsed from the International Health and Medical Services (IMHS) confirm Mr Parata has been diagnosed with bipolar disorder.
The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
Mr Parata held a Subclass 444, which allows an indefinite stay in Australia as long as he is a citizen of New Zealand. As such he is not required to have a purpose to be in Australia, unlike other subclasses of visa.
Mr Parata has been in Australia since he was seven years old, returning to New Zealand for a year in 1992/1993. He states he has four children in Australia. Three of his children are adults, and one is 17 years of age. Mr Parata has contact with his three youngest children and is particularly close to his second child who lived with him for almost a year. Mr Parata said he talks to her every week or fortnight. He also speaks to his third child every week or fortnight. Mr Parata said his son is having some problems and has been in trouble for stealing cars. Mr Parata has twice sent his son to live with Mr Parata’s mother in Queensland. When he has been in Queensland, his son misses his friends and returns to Melbourne. His son most recently returned to Melbourne approximately six weeks before the hearing and has not spoken to Mr Parata in this time.
The statements from third parties provided by Mr Parata attest to the high value he places on his relationships with his children, and that he is a good father to his children. Other than Ms Collett, the authors of the statements were not made available to speak to the Tribunal, despite the request of the Tribunal, so the extent of their support for Mr Parata or the need for him to remain in Australia could not be examined. However, the Tribunal accepts that Mr Parata places a high value on his connection with his children and will be greatly distressed by the separation from his children if he is required to leave Australia. He said he hope that his children will travel to New Zealand, but whether they could or will travel to see him is uncertain.
Mr Parata told the Tribunal he suffers from a mental illness and manages his illness by keeping away from other people and taking medication when he needs to.
The Tribunal accepts Mr Parata would be greatly distressed by separation from his children, and that his mental health may decline if he is removed from Australia.
However, he can maintain contact with his children through electronic means. It has not been suggested Mr Parata cannot obtain treatment and care for his mental illness in New Zealand.
While in no way devaluing the distress Mr Parata will experience if he is required to leave Australia and is separated from his children, and the decline he may experience in his mental health, the Tribunal does not find these compelling reasons to remain in Australia.
The hardship he would experience if his visa is cancelled, and the effect on his son who is 17 years of age, are further considered below.
The extent of compliance with visa conditions
A Subclass 444 visa does not have any conditions attached to it, and compliance with conditions does not apply.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Mr Parata told the Tribunal that he does not have any supports in New Zealand and all his supports and family are in Australia, where he has lived since he was seven years old. He lived in New Zealand for one year as he wanted to spend time with his father, but said it only took a couple of weeks before his father took him to live with his grandmother. His grandmother is deceased, and his father died of cancer in 2020.
His account that he has no family or support in New Zealand is not entirely consistent with his submissions to the Tribunal before the hearing. Mr Parata lists an aunt and uncle living in New Zealand and nine cousins. A statement provided by Mr Parata, from his cousin Mr Bennie Flavell, states Mr Flavell has always remained in contact with Mr Parata and was made to feel special and loved when he visited Mr Parata and his family. Mr Parata said Mr Flavell came and stayed with him for a week, and he would not want to impose on Mr Flavell and his family and only remained in contact with him on Facebook. The Tribunal finds he has family in New Zealand, including a cousin with whom he has remained in contact.
It was put to Mr Parata he could obtain assistance from health, welfare and social security services commensurate to services provided in Australia.[4] Mr Parata said he had heard from people in immigration detention that the assistance in New Zealand is not the best, and that he would struggle for the first few months. He said many people who returned have reoffended and have gone back to prison. The Tribunal accepts Mr Parata will struggle for the first few months if he returns to New Zealand as he will need to find employment and access health services, social security and housing.
[4] Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Mr Parata has worked in Australia in cold storage, food service and construction, but was not sure if he could do this in New Zealand when asked. He said he intends to work in housing, stonework or construction if released, and has a friend who can help him to get a job. The Tribunal considers he could seek employment in New Zealand in roles in which he has worked in Australia.
Mr Parata said he has struggled with his mental health for 20 years. He states he has been misdiagnosed and put on the wrong medication. The medication he was given for bipolar disorder helped, but he gained weight. Mr Parata said his current diagnosis is schizophrenia, and he is on medication. He said he takes medication whenever he needs it. This had been regularly over the last couple of weeks, but some weeks he does not take any. On being asked what his doctor said about taking medication regularly, he said he has been told he can take it when he needs it. While he was in prison, he had to take his medication twice a day.
Mr Parata said the effect of his mental illness is that he does not deal with stress well. He referred to suffering auditory and visual hallucinations when first diagnosed. He said he can deal with things at work but suffers stress in dealing with other people, and he tries to spend time by himself. He has a medical dispensation to have a single room in immigration detention. The Tribunal accepts that leaving Australia will cause Mr Parata stress and may lead to a deterioration in his mental health.
The Tribunal also accepts Mr Parata will suffer emotional hardship in being separated from his children, as he greatly values his involvement in their lives.
The Tribunal accepts Mr Parata will suffer considerable distress if his visa is cancelled and he is removed from Australia. He has lived in Australia since he was seven years of age and his mother and children live in Australia. He suffers from a mental illness, and his illness may deteriorate if he is removed. Mr Parata does have some family in New Zealand and has remained in contact with Mr Flavell. Health and social services in New Zealand are commensurate with the services offered in Australia. Mr Parata has maintained contact with his children by telephone and is able to continue to maintain his contact with them by telephone. In person contact will be difficult for him, and while he is hopeful they will travel to New Zealand, this is uncertain.
This factor weighs in favour of setting aside the decision to cancel his visa.
The circumstances in which ground of cancellation arose
On the last occasion Mr Parata was charged with breaching a family violence order, he said he had just been released from prison and Ms Collett picked him up at the train station. His parole officer could not contact him, and he was located by police at Ms Collett’s house.
Mr Parata said the last time he went to Court, even the Judge said that the orders should not have been put in place. He said the Judge asked the police officer, who told the judge he had put the orders in place because they knew Mr Parata would fail, and the judge remarked “so you set him up to fail” and the police officer answered, “yes we knew we could get him each time, we knew she would pick him up and take him home.” Mr Parata acknowledged the order remained in place as the police would not allow it to be removed. It has now lapsed because it expired rather than being removed.
The Tribunal finds it highly unlikely that a Judge would comment that an order should not be in place, and then leave it to expire rather than revoking the order. It also finds it unlikely the police would oppose the removal of an order unless it was considered there was a real risk to the person protected by the order. It is far more likely that Mr Parata continues to try to justify or minimise his behaviour.
The Tribunal finds that the cancellation has arisen from longstanding issues with managing aggression towards his domestic partner and repeated non-compliance with orders of the Court. This weighs heavily in favour of affirming the decision to cancel the visa.
Past and present behaviour of the visa holder towards the Department
There is nothing to indicate Mr Parata has been other than co-operative with the Department, and this factor is neutral.
Whether there would be consequential cancellations under s 140
There will not be any consequential cancellations if Mr Parata’s visa is cancelled, and this factor does not apply.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the Tribunal affirms the decision to cancel Mr Parata’s visa, he will be an unlawful non-citizen and liable to continued detention under s 189 of the Act. Under s 48 of the Act, there are limited other visas for which he can apply. As there is no information to show he may be eligible for any of the types of visa specified, he will be removed from Australia as soon as practicable under s 198 of the Act.
If he is removed or deported, he will be unable to return on a Subclass 444 visa as he will not meet the behaviour requirements for a further Subclass 444 visa under s 32 of the Act. There are no other readily apparent visa options available to him at this time. He could apply for a work visa if his previous employer can sponsor him. However, many of these visas are subject to Public Interest Criterion 4013, which would prevent him being granted a visa for three years unless there are compelling and compassionate circumstances (cl 4013(3)).
At the hearing Mr Parata told the Tribunal that after his visa was cancelled, he was sentenced to a further period of imprisonment, and the total of his sentences now exceeds 12 months. If this is the case, he does not pass the character test in s 501(6) as he has a substantial criminal record as defined in s 501(7) of the Act. This in turn means that if the cancellation of his visa is set aside and substituted with a decision not to cancel his visa, his visa may again be cancelled under s 501(2) of the Act.
In summary, if his visa remains cancelled, Mr Parata will be required to leave Australia and is unlikely to be able to return. This weighs against cancelling his visa, particularly in light of the length of time he has lived in Australia and as he arrived as a young child.
If his visa is not cancelled, it may again be cancelled under s 501(2) of the Act. If his visa is reinstated and is again cancelled, he will have a further opportunity to argue for the reinstatement of his visa. It is possible this will lead to a further period of detention.
A further cancellation, the opportunity to seek reinstatement and potential further periods in detention are hypothetical and little weight can be placed on hypothetical outcomes. Insofar as it can attribute any weight to the mandatory legal consequences of cancellation, it is attributed in favour of setting aside the cancellation of his visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
Mr Parata does not rely on any potential beach of non-refoulement obligations.
Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.
This has been the subject of differing interpretations. Most recently, in CFE16 v Minister and CFD16 v Minister,[5] (CFE16 & CFD16) Judge Reithmuller referred to Article 3 of the Convention and stated:
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[6]
[5] [2020] FCCA 1083
[6] At [19]
Judge Reithmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[7] Judge Reithmuller states:
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[8]
[7] At [24]
[8] At [25]
The issue of how to address the best interests of the child as a primary consideration has been considered again more recently in relation to cancellation under s 109 of the Act in DXQ16 v Minister for Immigration[9]. His Honour Justice Stewart states at [55] that consideration of Art. 3 requires the best interests of the child to be given primary consideration. The application of Art. 3 requires an analysis of whether the force of any other consideration outweighs the best interests of the children.
[9] [2020] FCA 1184
Mr Parata has four children in Australia, all of whom are Australian citizens. He has provided a birth certificate for his son, who is 17 years of age. His other three children are adults. The best interests of his son must be considered in this decision.
Mr Parata’s son turns 18 in approximately six months, and there is a limited period of time. His son is not currently in contact with Mr Parata, but Mr Parata has remained involved in his life and arranged for his son to live with his mother twice to try to assist when he started getting into trouble.
Mr Parata does not live with his son, there is six months until his son turns 18 years of age, and he can continue to communicate with his son electronically when his son is willing to do so. However, the Tribunal finds it is in the best interests of Mr Parata’s son for him to remain in Australia, and this factor weighs in favour of setting aside the cancellation of his visa.

One of the character references, provided by Ms Joana Ynusa, states Mr Parata is like an uncle to her children. At hearing, Mr Parata advised Ms Ynusa’s children are both over 18 years of age, and as a result they do not need to be taken into account further in considering international obligations.
Ms Collett has two children under 18 years of age. Ms Collett said there would realistically be no effect on her children if Mr Parata was removed from Australia. She advised that when she was in a relationship with Mr Parata, the children were removed from her care because Mr Parata was considered a threat. Both Mr Parata and Ms Collett said the paternal grandmother of the children tried to have the children removed from her care, and Ms Collett said this “forced her hand” to get a family violence order against Mr Parata. Ms Collett said this was raised as an issue when the children were removed from her care. Ms Collett agreed that to have the children removed from her care a Court was required to make a decision, but said things were said that were not true.
Ms Collett acknowledged that the children were present when the bottle was smashed injuring her face and they were scared as she had blood on her face. The children were removed while Mr Parata was in prison. The children have now been returned to her care after being away for six years. The Tribunal infers Mr Parata has not played a parental role for these children, and his presence in their lives was not considered in their best interests as they were removed from Ms Collett’s care so they would not live with Mr Parata. The Tribunal finds that it is not in the best interests of Ms Collett’s children for Mr Parata to remain in Australia.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
While a Subclass 444 visa is a temporary visa, the only limit on remaining in Australia is being a citizen of New Zealand. As a result, it has features of a permanent visa, and the Tribunal has considered Mr Parata’s ties to Australia.
The Tribunal has canvassed Mr Parata’s ties with his children, and finds he has strong family ties in Australia.

100. Mr Parata provided statements from family members and friends in Australia and New Zealand. None of these were signed, and none of those who provided statements were made available to give evidence as requested by the Tribunal. However, as Mr Parata is not represented and is in immigration detention, the Tribunal has accepted these statements as being by the purported authors, and that the people who provided the statements hold the views expressed in the statements except where this is inconsistent with the oral evidence given by Mr Parata.
101. A statement from Mr Parata’s friend Ms Ingrid West says she has known Mr Parata since she was young, and he has been like a big brother to her. She states he is generous, a hard worker, a loving father and a great friend. Ms West states if he is removed from Australia this would have a negative impact on Mr Parata and others.
102. Mr Sean Coffey provided a statement that he went to high school with Mr Parata, who has a great sense of humour, is polite and respectful to others and is a talented musician. Mr Coffey states he is aware Mr Parata had drug and alcohol problems, which led to a decline in his mental health and hardship at times, but that he is full of remorse and regret for his actions. Mr Coffey states he has not seen Mr Parata since he has been detained but hopes he gets the help he needs to get his life back on track and seek help for himself.
103. Mr Parata’s uncle Mr Stewart Dickinson states Mr Parata is polite, courteous and caring, and would do anything for his children. Mr Dickinson states he is a hard worker.
104. Ms Tina Wright provided a statement stating Mr Parata loves music and is trustworthy, witty and intelligent. Ms Wright states he has been suffering mentally because of his incarceration, which is not fair as he is a good-hearted person who has been left in limbo.
105. An email was provided from T P Flavell attesting to Mr Parata’s character and stating his children miss their father as do his family and friends.
106. Mr Parata’s aunt Monica Flavell states Mr Parata is a great father and a hard worker and has been respectful to her and her family.
107. Other support letters were provided by his friend Leonidis Jaxon, who states Mr Parata is a fun-loving person with a great sense of humour, is a hard worker and gets along well with everyone around him. Ms Jaxon states Mr Parata loves his family and would help strangers in need. Given this description is at odds with Mr Parata’s own description that other people stress him, little weight can be placed on this statement.
108. Mr Parata’s friend Daniel Simpson says he can guarantee Mr Parata work fibre glassing for the caravan industry and that Mr Parata can also assist him with coaching a local basketball team, with a view to taking on an independent coaching role.
109. Ms Michelle Bennion states she has known Mr Parata for seven years and in that time he has helped her emotionally, fixed her car and has given her and her two daughters a male role model. Ms Bennion states Mr Parata previously worked with his uncle in Sydney, and she believes he is an asset to Australia.
110. The Tribunal finds Mr Parata has strong ties to the people in Australia who have provided statements in support of his application, and this weighs in favour of not cancelling his visa.
CONCLUSION
111. Mr Parata has a history of family violence spanning over 20 years against different domestic partners. He has a history of over 10 years of failing to comply with community-based orders, suspended sentences, orders to undergo treatment and rehabilitation and community corrections orders. The imposition of intervention or family violence orders does not appear to have acted as a deterrent as he has continued to breach these orders. He has been afforded a great deal of tolerance before his conduct led to him first being imprisoned in 2016. Given his lack of compliance with corrections orders and associated rehabilitation, the Tribunal considers he may be a risk to the health and safety of a segment of the Australian community if released from immigration detention.
112. In looking at whether his visa should be cancelled, Mr Parata has been in Australia for approximately 40 years, and the length of time he has been in Australia requires careful attention to be given in relation to whether his visa should be cancelled. He is unlikely to be able to return to Australia if his visa is cancelled. If the decision to cancel his visa is set aside, and he has been sentenced to terms of imprisonment that amount to 12 months or more, his visa may be cancelled again. His son is a minor and it is in the best interests of his son that Mr Parata remain in Australia, and he has strong family ties and ties to his friends who live in Australia.
113. The Tribunal has carefully considered the factors that favour not cancelling Mr Parata’s visa but does not consider these outweigh the risk he poses to a segment of the community and has concluded the visa should be cancelled.
DECISION
114. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.
Kate Millar
Senior Member