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

Peneha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 930 (28 March 2024)
Division:GENERAL DIVISION
File Number: 2024/0126
Re:Kawiti Peneha
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R. Maguire
Date of decision: 28 March 2024
Date of written reasons: 2 May 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made on 5 January 2024 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..........[SGD]...............
Member R. Maguire
Catchwords
MIGRATION – non revocation of a mandatory cancellation of visa- where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where Tribunal finding the Applicant’s recidivist risk remains unchanged- where Tribunal finding that factors in favour of revocation outweighed by factors against revocation- Tribunal finding there is no another reason to revoke the mandatory cancellation decision- decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member R Maguire
2 May 2024

By application made on 8 January 2024 the Applicant seeks the review of a decision made by a delegate of the Minister (“the Respondent”) made on 5 January 2024 pursuant to

s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke a decision under

s 501(3A) of the Act to mandatorily cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (“the Regulation”) (28 days in accordance with reg 2.52), and the decision-maker determines whether the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under

s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
1For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution.[1]
[1] Section 501(12) of the Act.
The Applicant is a 34 year old citizen of New Zealand, who has lived in Australia since his arrival on 25 January 2000 at the age of ten years and has never departed Australia.
On 18 May 2023, the Applicant was sentenced 15 months’ imprisonment[2].
[2] Ex R1 p 49.
This sentencing led to the mandatory cancellation of the Applicant’s Visa on 6 June 2023 pursuant to s 501(3A) of the Act.[3] Notice of this decision was given to the Applicant by hand on that date.
[3] Exhibit R1 p 52-58.
In accordance with reg 2.52(2)(b) of the Regulation the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[4]
[4] Exhibit R1 p 70-89.
On 5 January 2024, a delegate of the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the Visa cancellation decision made under s 501(3A) of the Act.[5] The Applicant was notified of this decision by email on that date, and the Applicant made the present application to this Tribunal for a review of that decision.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit R1, pp 14-40.
[6] Exhibit R1, pp 4-13.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day was 29 March 2024, which was Good Friday. It was therefore open to the Tribunal to make a decision prior to midnight, on that date. On 28 March 2024, the Tribunal affirmed the decision under review, and now publishes its reasons for doing so.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which the Tribunal is required to read, identify, understand and evaluate.[7]
[7] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[8]
[8] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and, if not,
·whether there is another reason why the Applicant’s Visa cancellation decision should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
The evidence referred to above clearly establishes that the Applicant has a substantial criminal record within the meaning of s 501(6)(a) of Act having regard to s 501(7)(c) of the Act and the Tribunal finds that he does not pass the character test,[9] and therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[9] As was conceded by the Applicant in Ex A1 par 5.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision to mandatorily cancel the Applicant’s Visa should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 99
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) 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 (“the Direction” or “Direction 99”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[10] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
Relevantly, the Direction states that:[11]
‘Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’
[11] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a 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.
6Decision-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.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
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.
Paragraph 9(1) 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.
The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
‘…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[12] [2018] FCA 594 at [23].
In considering issues of family violence, regard must be had to both s 5G of the Act which broadly defines “Relationships and family members”, as well as para. 4(1) of the Direction which defines “member of the person’s family”, noting that both definitions are inclusive.
Section 5G of the Act is as follows:
5G Relationships and family members
1For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
2For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a)a de facto partner of the person;
(b)someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c)anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
Para. 4(1) of the Direction which defines “member of the person’s family” includes present and former intimate partners:
‘member of the person's family, for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.’
The Tribunal now turns to addressing the Primary and Other considerations.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
In reaching its decision the Tribunal has taken into account the evidence and submissions at hearing and all of the documents listed in the Exhibit Register which is annexed to these reasons.
The offence that led to the cancellation of the Applicant’s Visa: Assault occasioning bodily harm whilst armed/in company[13] ('cancellation offence’) was dealt with by way of plea of guilty before Acting Magistrate Cooke in the Redcliffe Magistrates Court[14] on 18 May 2023. He was sentenced to 15 months’ imprisonment and his parole date was set as 22 June 2023. On that date, the Applicant was taken into immigration detention.
[13] Ex R1 p 42.
[14] Ex R1 p 48-50.
The sentencing reasons provide scant detail of the Applicant’s actual conduct which constituted the offence. The learned Magistrate, presumably having heard the prosecutor’s submissions drawn from the Queensland Police Service Court Brief set out below, remarked only “I note the circumstances surrounding the committing of the offence and I note your previous history.”[15] The learned Magistrate referred to the Applicant’s extensive previous history of violent offences in both Victoria and Queensland, and remarked that the offence was committed whilst armed and in company, and that it was “very fortunate that the injury done to the victim was not more serious….”. His Honour remarked that there was no excuse or no logic for the Applicant’s actions of violently attacking his victim. His Honour cautioned the Applicant that if he committed more offences, he would be spending more time in custody, and said that he regarded the Applicant’s offence as “an extremely serious offence.”
[15] Ex R1 p 49.
Greater detail of the circumstances of this offending is found in the Queensland Police Service Court Brief[16] customarily read to the court on sentencing, extracts of which reveal that the assault occurred in the car park at Red Rooster in Redcliffe at 2:39 am as the victim returned to his car after visiting Redcliffe Hospital:
‘The victim has engaged in a conversation with the defendant who was rambling as he appeared intoxicated. The victim has rolled him a cigarette and began speaking with him.
The defendant then started to become aggressive and agitated towards the victim. The defendant and the other male then whispered to each other and the defendant has armed himself with a screwdriver and without warning has slashed at the victim which caused a laceration to his left forearm.
The defendant then said to the victim “If I had a gun I would shoot you.”
The victim then walked back towards the hospital and contacted Police.’
[Tribunal emphasis]
[16] Ex R3 p 341.

The above incident resulted in a 9 cm laceration to the victim’s left arm.[17] Photographs before the Tribunal[18] show a lengthy scar on the victim’s inside left forearm. The Tribunal notes that the Queensland Police Service Bail Affidavit annexure in relation to this charge contains statements including[19]:
‘The defendant is a New Zealand citizen with unknown family network also residing in Australia. According to Police databases, the defendant habitually associates with other people who regularly engage in criminal activities. The defendant has no current employment and no fixed place of residence. The defendant has been charged with like offences having received a sentence of 275 days imprisonment in 2021. …
Since 2018, the defendant has been granted bail on 8 occasions. The defendant has been charged on 4 occasions for breaching his bail conditions. ….
The defendant has proven by these charges that are brought against him that he is a danger to the community. He has violently attacked a member of the community in an unprovoked manner with a weapon that has the potential to cause life threatening injuries.’
[Tribunal Emphasis]
[17] Ex R3 S159 740-741.
[18] Ex R3 S153 p725-729; S161 p 747-749.
[19] Ex R3 p 740.
The Applicant’s lengthy criminal history is described in detail at paragraphs 11 to 22 of Ex R2.
The Applicant’s history of offending began when he was about 22 with two counts of assault in company, and one of robbery. He has since committed numerous offences involving attempting to enter premises with intent to commit an indictable offence, theft, robbery, burglary, stolen goods, weapons, false names, obstructing police, and breaches of bail and other orders[20]. He has been previously sentenced to prison terms in 2013, 2017 (twice) and 2021 (twice).
[20] Ex R1 p 41-44; Ex R2 attachment A.
He has committed crimes against government officials, namely obstructing police and giving police false names. He has been given a broad range of sentences, ranging from fines without convictions to community correction orders, and multiple terms of imprisonment.
Personal Circumstances Form
In his revocation request and Personal Circumstances Form,(PCF) the Applicant relied on the presence in Australia of his whole family, his eight year old daughter, who shall be referred to as AK, and nieces and nephews. He had lived in Australia for 23 years. With apparent regard to his cancellation offence, he recorded[21]:
‘I also feel that because I have committed a crime that I did not commit the crime but I ~~was~~ [strikethrough in original] did plead guilty because I was there having my daughter and family.’
[21] Ex R1 73.
The Applicant gave his marital status as single, and described his daughter AK, as living with her mother, who shall be referred to as JK, and said he would not be living with AK if returned to the community.
He named his mother, three brothers and a sister and brother in law as living in Australia. He also identified three uncles and aunts, five nieces and nephews, and 20 cousins as living in Australia. The result of his Visa being cancelled meant he would not be able to work with his brother or be an uncle or father.
The Applicant sought to explain his offending by accusing his companion of having committed it saying:[22]
‘…that the offence was me being there wrong company were (sic) the person that I was with committed the offence and I pleaded guilty to it.’
[22] Ibid p 83 item 10.
The Applicant said he reached year 11 education but described no employment history. He said that he had been a volunteer for homeless shelters. He described no impediments to his return to New Zealand.
Submissions from Samuta McComber Lawyers
The Respondent Minister’s Department received a 21 page submission from Samuta McComber Lawyers dated 29 August 2023 on behalf of the Applicant which addressed relevant matters under the Direction. His lawyers conceded that the decision to cancel the Visa was made according to law, and that he did not pass the character test.
Regarding paragraph 8.1.1(1)(a) of the Direction, there is no history sexual crimes or crimes of a violent nature against women or children.
Regarding paragraph 8.1.1(1)(b) of the Direction, the submission acknowledged that the Applicant had committed three offences against government officials, having twice stated a false name when requested, and once obstructed a police officer, but had received

non-custodial sentences.
Regarding paragraph 8.1.1(1)(c) of the Direction, his offending between 2012 and 2022 had been dealt with by a range of non-custodial sentences, or short custodial sentences ranging from 62 days to four months’ imprisonment. Non-custodial sentences reflected that offences were objectively not serious. The duration of his custodial sentences reflected that his offending, while serious, was at the lower end of the scale.
The Applicant’s sentences for offence of ‘Attempted enter premises with intent to commit indicatable offence’ and ‘Receiving stolen property’ committed on 1 September 2020 were also at the lower end of the scale of seriousness, as a sentence of imprisonment was served by way of intensive correction order. These offences contained no element of violence and were not of a nature the Direction described as serious.
The structure of the cancellation sentence reflected the severity of the Applicant’s conduct, but the fixing of a parole date reflected mitigating factors.
Regarding paragraphs 8.1.1(1)(d) and (e) of the Direction, it was conceded that there had been a frequency of offending and increasing seriousness, and that the cumulative weight of his offending weighed against him. However, this was outweighed by primary and other considerations.
No submission was made regarding paragraph 8.1.1(1)(f) of the Direction.
Paragraphs 8.1.1(1)(g) and (h) of the Direction were irrelevant.
Regarding paragraph 8.1.2(2) of the Direction, it was conceded that the harm that would be caused if the Applicant repeated his cancellation or other violent offending would be serious, but not so serious as to warrant non-revocation in the light of countervailing considerations.
The harm from his less serious offending would be of a less serious nature.
The Applicant had been intermittently homeless since his early twenties, and had struggled with mental health, drug, and alcohol issues, as well as the suicide of his ex-partner in 2021.
It was submitted that the Applicant was a low risk of re-offending, particularly at a level as serious as his cancellation offending. He had ceased drug and alcohol use, undergone rehabilitation, and had a solid rehabilitation plan in the community, initially living with his mother, and then entering a long term inpatient rehabilitation program. He also had an offer of accommodation from his brother. He had the benefit of strong familial support, and the deterrent effect of Visa cancellation.
Primary consideration 1 weighed against revocation but was outweighed by countervailing considerations.
With regard to Primary consideration 2, there was insufficient evidence to assign weight against the Applicant, and this should weigh neutrally.
Primary Consideration 3 should weigh determinatively in favour of the Applicant having regard to the factors set out at paragraphs 71 to 75 of the submission.
Primary Consideration 4 involved not only the Applicant’s daughter, but also his nieces and nephews. His daughter’s interests weighed extremely heavily in favour of revocation, and his nephews and nieces interest also weighed in favour of revocation.
Primary Consideration 5 weighed only marginally against the Applicant for the reasons set out at paragraphs 91-100 of the submission.
The Other Consideration- legal consequences was not relevant.
The Other Consideration-impediments to return was relevant having regard to the Applicant’s mental and physical health and his capacity to support himself financially. He would be subject to a Returning Offenders Order and government supervision. It would be harder for him to maintain a basic standard of living.
There was no evidence regarding Other Consideration- impact on victims.
The Other Consideration- Impacts on Australian business interests was not relevant.
The relevant considerations weighed heavily in favour of revocation of the decision and

re-instatement of the Visa.
The Applicant provided evidence of his efforts at rehabilitation and his relationship with his daughter. He also provided letters of support from family members describing his childhood and youth in a difficult environment, and the death of his father, the extent of his family support, and his role as a father and uncle. The letters also detailed family angst at the prospect of his deportation, and their shared fears for his future in New Zealand, and the damage to his relationship with his daughter, nephews and nieces.
Applicant’s statement Ex A2
The Applicant provided a seven page signed statement dated 29 August 2023[23].
[23] Ex A2.
The Applicant said that he was born in New Zealand in 1989, and arrived in Australia on 25 January 2000, and had not left since. He did primary and secondary schooling in Australia, but dropped out of school in year 9, and completed years 10 and 11 at TAFE.
He said he had some employment in Australia, working at a furniture shop for about two years after he graduated, and at a textiles factory for about two years, quitting in 2012. He had also done work landscaping and labouring work but could not recall details.
He gave a limited recollection of his father’s passing, but said it had been extremely traumatic, and had impacted him throughout his life.
The Applicant narrated a history of homelessness, mental struggles, methamphetamines and alcohol.
He described meeting JK in 2013, and the birth of their daughter AK in 2015. He continued to live with them until 2017, when he became homeless, and reiterated his drug and alcohol use.
His mother and siblings moved to Queensland in 2017, and he lived with her for about nine months, and returned to homelessness, drugs and alcohol.
He had been heavily intoxicated with alcohol at the time of the offence that led to his Visa being cancelled offence and was feeling threatened. However, there was no excuse for his behaviour. He retracted his earlier claim that he had not committed the offence and claimed to have been stressed and rushing when he made it.
He said the weapon he had used was the casing of a tattoo gun that he had on him. If the circumstance were to be repeated, he would walk away.
He said at the time of the offence he was still grieving the loss of his ex-partner who shall be referred to as SK.
He blamed his homelessness, and drug and alcohol use since 2012, for not being able to recall many of his offences.
The Applicant did not believe he would reoffend if he remained in Australia, as he was disappointed with his criminal history and had ceased use of drugs and alcohol, done an alcohol and drug course, and done five sessions with Lives Lived Well. He was now in a much better place than when he had offended. He had family support for accommodation and employment.
Regarding ties to Australia, the Applicant said that he had lived here for 24 of his 34 years, his entire immediate family is here, as well as his daughter, and he emphasised the closeness of his relationships, and the consequences for the various individuals.
Regarding the best interests of minor children, the Applicant primarily focused on his daughter AK, and detailed the extent of his involvement with her, including his daily involvement in her life until she was two, and his occasional contact including fortnightly phone calls unless he was in prison, and his daily calls whilst in immigration detention.
The Applicant planned for AK to come and stay with him once he had completed his rehabilitation and felt JK would facilitate this. He saw AK when she came to Queensland in January 2023, and anticipated seeing her again in September 2023 when she next visited Queensland.
The Applicant also said that he was also close to his various nieces and nephews and communicated with them via the internet. He believed his deportation would be an emotionally negative impact on them.
Regarding impediments to returning to New Zealand, the Applicant said that he did not want to return and was worried about not seeing his daughter and not having the family support he has in Australia. He had little in the way of family contacts, ties or support there, and was worried he would fall back into homelessness or struggle to get a job and support himself, as he had no trade skills or qualifications. He was also worried that his deportation would add to his mental health struggles.
The Applicant also produced course certificates for:
(a)Responding to Domestic and Family Violence (12 online contact hours);
(b)Drug and Alcohol Abuse 101(7 contact hours);
(c)Depression Management (5 contact hours);
(d)Workplace Drug Use (6 contact hours);
(e)Stress Management (4 contact hours);
(f)Building self-esteem in children (5 contact hours);
(g)Anger Management Techniques (5 contact hours); and
(h)Anxiety Therapy 101 (5 contact hours).
The Applicant also produced his International Health and Medical Services (IHMS) records[24]. The Applicant’s Health Induction Assessment by a General Practitioner on

22 June 2023 recorded diagnoses of opioid abuse disorder, and drug withdrawal disorder, and he denied any mental health history. He had used heroin during his teenage years, and most used recently ‘IV’ (which the Tribunal takes to mean intravenous) suboxone daily, most recently “2 days ago”.[25] The same day he was reviewed by a Mental Health Nurse who returned a ‘Nil’ diagnosis, and he denied any history of trauma or abuse.[26] On 28 June 2023, he reported using intravenous drug use of suboxone while in jail[27]. On

30 June 2023, the Applicant reported starting drug use at the age of 13, and intravenous drug use at 17, and his preferred drug of choice was meth and alcohol, and he had developed a Subutex addiction whilst in custody[28].
[24] Ex A3 p 9-143.
[25] Ibid at 117.
[26] Ibid p 115.
[27] Ibid p 109.
[28] Ibid p 103.
On 7 July 2023, the Applicant declined to attend his booked appointment with Dr Jillian Spencer, Psychiatrist,[29] and on 10 July 2023, he declined to attend a consultation with a Primary Health Nurse.[30] He also failed to attend a Mental Health Screening on 17 July 2023.[31]
[29] Ibid p 100.
[30] Ibid p 99.
[31] Ibid p 97.
The Applicant attended a Mental Health Consultation with Dr Spencer on 19 July 2023[32], and was diagnosed as having a stable mood. His ex-girlfriend was reported as hanging herself two years earlier after they had an argument. His cancellation offence was described as “some random dude on the street. Says there was no reason for it, argument. Was intoxicated.” He described a dislike for cannabis, an intermittent user of methamphetamine since the age of 19, and a 10 year history of suboxone and heroin, which he had tried to keep minimal but used daily. He reported enjoying life in immigration detention, knowing he could wake up in the morning and breakfast was always going to be there. He could do washing and other activities and was really glad to have a roof over his head. He said he had all that he had wanted and did not mind if he stayed for two years. He had been put off drugs and intended to stay away from drugs. [33]
[32] Ibid p 73.
[33] Ibid p 93-94.
Two days after this consultation, the Applicant refused to attend a mental health screening with a mental health nurse.[34] He again refused to attend a further two days later, and no further appointments were scheduled as he had failed to attend three times.[35]
[34] Ibid p 92.
[35] Ibid p 91.
On 3 August 2023, the Applicant reported that his last drink had been four years ago, his last cannabis use had been years ago, and his last methamphetamine use had been years ago.[36]
[36] Ibid p 86.
On 27 September 2023, General Practitioner Dr Halima Goss reported:
‘[The Applicant] was anxious and wanting to start the Suboxone programme. He says he is using ‘subby’ in here and wants to be away from that.
I explained that this was managed by Psychiatrist Dr Jillian and she would be the one to prescribe after assessing his needs and history …
IMP: Patient has a strong need for support to move away from the opioid dependence and the environment does add to the challenges. He is committed to getting healthy and willing to have treatment for health and drug dependence.’
On 15 October 2023, the Applicant was reported as missing his medication the day before,[37] and on 16 October 2023, he “declined to attend for critical medication despite prompts x 2.”[38] It later emerged that this was in protest against not being able to start the buvidal program[39].
[37] Ibid p 67.
[38] Ibid p 65.
[39] Ibid p 62, 66.
The Applicant was reviewed by Psychiatrist Dr Jillian Spencer on 18 October 2023 who recorded[40]:
‘Pattern of use: injecting illicit Suboxone once per day, 1 mg. Says if he doesn’t have it he can’t sleep and he gets unmotivated and irritable. …. Opioid dependence.’
[40] Ibid p 60.
The Applicant started monthly buvidal injections on 19 October 2023,[41] and is recorded by Dr Spencer as having ‘last used on 18 October 2023. Hasn’t used and hasn’t had any cravings…………………….denies any illicit drug use since starting OSTP.’[42]
[41] Ibid p 58.
[42] Ibid p 56.
On 24 October 2023, the Applicant did not attend for “critical medications despite being called up in the clinic twice. Adamantly refused to attend as per collateral from the SERCO officer” [43]
[43] Ibid p 51.
The records show that the Applicant was given 16 mg of Buvidal on 19 October and requested a “top up” of 8 mg on 24 October. His dosage was increased to 24 mg on 26 October, and to 32 mg on 31 October.
On 1 November 2023, the Applicant reported to Dr Spencer that he had “used illicit Suboxone 0.5 mg a couple of times in the last week. …. Says some of the charges against him were just added and were not true….. Imp: tolerating Buvidal well but has used a couple of times and feels that it is wearing off before his next dose….Opioid dependence.”[44]
[44] Ibid p 44.
On 6 November 2023, the Applicant denied illicit drug use to a mental health nurse.[45]
[45] Ibid p 41.
On 18 January 2024, the Applicant reported to Sharon Hassall Drug and Alcohol Psychologist:
‘Reports being appreciative of the support received whilst in detention and has said no to illicit drugs that have been offered to him whilst here.’
On 7 February 2024, the Applicant was reported as having “wanted to discuss his OSTP dose as he feels he needs more due to cravings in the last week.”[46]
[46] Ibid p 16.
Evidence of Dr Yoxall (ExA5)
In support of the Applicant’s case, a 50 page report dated 12 March 2024 from Dr Jacqui Yoxall Psychologist was provided[47]. Dr Yoxall’s report referred to a Certificates of Completion of a number of courses completed by the Applicant[48]:
Certificate of Completion – Drug and Alcohol Abuse 101 – Universal Class (26 August 2023)
Certificate of Completion – Stress Management – Universal Class (4 Contact hours 2 February 2024)
Certificate of Completion – Building Self Esteem in Children – Universal Class (5 Contact hours 1 February 2024)
Certificate of Completion – Anger Management Techniques – Universal Class (5 Contact hours 10 December 2023)
Certificate of Completion – Depression Management – Universal Class (5 contact hours 31 January 2024)
Certificate of Completion – Anxiety Therapy – Universal Class (5 Contact hours 2024)
Certificate of Completion – Workplace Drug Use – An HR Guide – Universal Class (6 contact hours 13 February 2024)
Certificate of Completion – Responding to Domestic and Family Violence (12 contact hours 23 December 2023)
[47] Ex A5.
[48] Ex A3 pp 1-8.
For the purposes of the report, Dr Yoxall consulted with the Applicant via videoconference on 1 September 2023, and again on 1 March 2024, on which occasions he showed markedly different presentations which was greatly improved at the second consultation. However, there were gaps and inconsistencies in information available, and he struggled to recall information in an organised manner and there were many gaps in his memory.

Before Dr Yoxall, the Applicant did not dispute the information in his National Police Check. He had prior charges of sexual assault which were withdrawn[49]. He had been the respondent in one previous DVO and was presently also the respondent in one.
[49] Ibid p 6.
Dr Yoxall reviewed the Applicant’s background, criminal, medical and substance abuse histories. Dr Yoxall observed that the Applicant had a “substantial history of substance abuse” and observed that there had been variations in the details he had offered to health professionals, and he had acknowledged that he had provided inconsistent information regarding his past drug use, particularly his “past opioid dependence”[50].
[50] Ex A5 p 15.
The Applicant told Dr Yoxall that he struggled to cope with absence of a father during his developmental years, and by his late adolescence he was “experimenting” with drugs and alcohol regularly. From the age of 19 he initially smoked, and then intravenously injected methamphetamine. His use of it escalated from the age of 21 when he lost his job and had to move out from the home of his elder brother. His drug use led to dishonesty offences which escalated over time. Much of his offending occurred when under the influence of alcohol or drugs and in company with others. He had limited recollection of his offending.
He lived with JK for about two years from 2013 to 2015 before his drug use and mental health led to the breakup of the relationship. Thereafter his drug and alcohol use escalated further.
After moving to Queensland in 2017 the Applicant lived with family for about nine months but could not obtain or maintain employment. His drug dependence led to homelessness, further offending, and breaches of orders.
His relationship with a drug dependent woman (identified in evidence as SK) ended when she suicided after they had argued. Her children and family blamed him for her death, and it took many months for a coroner to conclude that she died from suicide. The grief and depression caused by this episode continued and escalated his dependencies.
Dr Yoxall reviewed the history of domestic violence allegations against the Applicant, and her understanding of the circumstances.
Dr Yoxall recorded that the Applicant appeared to be genuinely remorseful, and accepting of his offending, and aware of the impact of his offending. He demonstrated an increased level of insight.
Dr Yoxall recorded that the Applicant had told health practitioners that he used suboxone illegally while in detention but said that in recent months he had declined offers of illicit drugs while in immigration detention.
Dr Yoxall reviewed the Applicant’s efforts at rehabilitation whilst in detention, and his interaction with health professionals, and his engagement with the Opioid Substitution Treatment Program (OSTP) via monthly injections of buprenorphine (brand name Buvidal) which reduces opioid withdrawal symptoms and cravings for substances like heroin and morphine, but not methylamphetamines. She noted that he initially used suboxone illegally whilst on this program, but he reported that since late November 2023 the Buvidal had been very effective.
Dr Yoxall recorded that there had been continuing improvement in the Applicant’s functioning and engagement in rehabilitation, and he was more stable than he had been for many years.
Dr Yoxall reported that the Applicant had realistic and feasible plans for the future, living with his mother, and attending rehabilitation until he can get into an in-patient rehabilitation program. He had offers of assistance to find work with NDIS or in his brother’s scaffolding business. His daughter’s mother had expressed willingness to facilitate his regular contact with their daughter provided he remained abstinent from drugs.
Dr Yoxall recorded the Applicant’s fears of the challenges he would face if returned to New Zealand. He had created some tentative plans in that circumstance.
Dr Yoxall opined that the Applicant’s achievement of a substantial amount of change in the challenging environments of prison and detention indicated potential for permanent and enduring change.
Dr Yoxall recorded that the Applicant had been unable to provide a clear and coherent account of most of his past offending, except for his most recent offence[51].
[51] Ibid p 28.
Regarding risk assessment of the likelihood of the Applicant’s reoffending, Dr Yoxall recorded that this was “complex at best”.[52]
[52] Ibid p 30.
Dr Yoxall recorded that the Applicant’s score on the LSI-R was 25 (43.9%ile) which accorded with a moderate risk of general reoffending and a moderate need for rehabilitation.[53]
[53] Ibid p 33.
Using the Violent Risk Appraisal Guide (VRAG), Dr Yoxall calculated a score of 4 for the Applicant, which was assigned to Risk Category 5. It was not possible to determine if the Applicant was more similar to the 38% who reoffended violently within 7 years, or the 62% that did not.[54]
[54] Ibid p 34.
Dr Yoxall assessed the Applicant having regard to the HCR-20 Structured Professional Judgment tool for estimation of likelihood of violent offending.
Dr Yoxall recorded that the Applicant achieved a score or 14/20 on the Historical Scale Risk item[55], 3/10 for the Clinical Scale Risk items, and 2/10 for Risk Management items[56].
[55] Ibid p 35.
[56] Ibid p 36.
The Applicant’s overall score on the HCR-20 was 19/40 which was generally considered to be a moderate risk of violent offending, however Dr Yoxall opined that given the degree of change the Applicant had demonstrated, continuation of his treatment regime and abstinence from drugs and alcohol reduced his risk of offending to low.[57]
[57] Ibid p 36.
In summary, Dr Yoxall opined that the Applicant had lived with undiagnosed anxiety and depression for many years since childhood, and self-medicated with drugs and alcohol. The breakdown of his relationship with JK, and the later suicide of his girlfriend were exacerbating factors. His drug dependence and poor mental health have been key factors in his offending.
There was an extreme contrast in his presentations on 1 September 2023 and 1 March 2024, demonstrating a commitment to change. His risk of reoffending was directly related to his risk of relapse to substance dependence and his management of his mental health. He has polysubstance dependence (methylamphetamine, alcohol and opioids). His alcohol dependence was in remission due to a controlled environment. His methylamphetamine dependence was in remission, and his opioid dependence was in remission under treatment. He considered his most enduring addiction was methylamphetamine. He was on an OSTP with seemingly positive impact. Continuation of this in the community would reduce his risk of relapse to heroin dependence.[58]
[58] Ibid p 39.
However, OSTP was not an evidence based treatment for methylamphetamine dependence. Treatment for methylamphetamine addiction typically involved behavioural therapies, counselling, support groups and psychoeducation. He would require ongoing residential drug rehabilitation in the community. His positive response to rehabilitation was relatively recent having regard to his lengthy criminal history.
Dr Yoxall opined[59]:
‘If Mr Peneha engages in ongoing rehabilitation in the community, and manages to maintain remission from alcohol, methylamphetamine and opioid dependence, whilst managing his mental health, then his risk of reoffending will be substantially reduced. If these factors are not in place, then his risk of reoffending will be moderate to high.’
[59] Ibid p 40-41.
Deportation was likely to substantially impact his mental health.
Forced separation from her father could cause lifelong psychological impact on his daughter. This had to be balanced against any risk that the parent might pose to the child.
EVIDENCE AT HEARING
Day 1
This matter was heard by the Tribunal on 14 and 15 March 2024. Ms Ozherelyeva appeared for the Applicant, and Ms Tattersall for the Respondent.
At the commencement of the hearing, Ms Ozherelyeva conceded the accuracy of the Applicant’s offending and other conduct as recorded in the exhibits before the Tribunal. She also conceded that each of the women who were subject of family violence evidence were members of his family for the purposes of the family violence definition in the Direction.
Ms Ozherelyeva conceded that primary considerations 1 and 5 were against the Applicant and that there was evidence in respect of Primary Consideration 2, but the Victorian charges and order were dropped, and the Queensland order was modified to good behaviour and the protected person then died. She submitted that Primary Considerations 3 and 4 and Other Consideration 3 weighed heavily in favour of revocation, and that other considerations 1,3, and 4 were neutral.
The Applicant gave evidence in chief in line with his statement before the Tribunal. At times, his evidence ventured outside the statement, and to that extent, the Tribunal has disregarded it as being in breach of the two day rule provided in s 500(6H) of the Act.
Early in his evidence in chief, the Applicant became visibly emotional, and the Tribunal adjourned for ten minutes to allow him to recover his composure.
Upon resumption the Applicant confirmed to the Tribunal that he was ready to proceed, and Ms Ozherelyeva confirmed to the Tribunal that she was comfortable for him to proceed with his evidence.
Cross examination
The Applicant told Ms Tattersall how he moved to Australia in 2000 and lived in Sydney until 2004, when he and his family moved to Melbourne. He moved out of home when he was about 17 or 18 years of age, and went to live with his brother, sister, and her boyfriend. He lost his job at a furniture place for arriving late for work, and then moved to live with his girlfriend for about a year, after which he became homeless or couch-surfing from 2011 to 2013.
He lived with JK and her mother in Melbourne for about four years. He was in prison from December 2016 until June 2017, and thought he was homeless on release. He then followed his mother to Queensland and lived with her for about nine months. He moved out when she went to New Zealand for a funeral.
He was then homeless or couch-surfing until he went back to custody in October 2021 and was in prison from January to March 2022.
He was then imprisoned again in March 2023, and had been in prison or detention since that time.
His elder brother is Pairama, who lives at Newport, and his younger brother is Machia, who lives at Deception Bay, but his children are in New Zealand. He also has a sister Piriana and a brother in law, Lawrence, who live at North Lakes. He was not able to say how many aunts and uncles he had in Australia and was not sure where they were. He had not spoken to them since before he went to prison.
His father had eleven brothers and eleven sisters. He had “heaps of cousins” some in Australia and some in New Zealand.
The only relatives he talks to are his uncle Cowi and his cousin Kahi. He did not know where Cowi lived, and Kahi lived “somewhere” in New Zealand. They were the only two members of his extended family that he spoke to very much.
The Applicant said that he spoke to Machia every day now that he lived in Australia, but only saw him once a month because he (Machia) worked all the time.
He spoke to and saw his sister a lot and would sometimes collect her children from school. She did NDIS work “like a nurse”. He did not see her or speak to her for periods when he was under the influence of drugs or alcohol. His older brother would sometimes come and see him and help him when he was using drugs and alcohol.
Prior to his incarceration he saw his mother at least once a month, even when using drugs and alcohol. She works six days a week. She has visited him a couple of times in detention. He still saw his mother during periods of homelessness. She would collect his daughter from the airport, and have her for two weeks, and he would visit. His family have been more involved with him since has been in detention.
His family were aware of his homelessness. The Applicant said that they tried to help him, but they worked all the time, and there was only so much they could do.
The Applicant agreed that his employment in Australia had been “fairly limited.”[60] He described two jobs which each lasted a few years, and two which lasted a few months. He had not worked since 2021. He otherwise relied on government support.
[60] Transcript Day 1 p 28 lines 13-14.
His plans for the future were to live and work with his younger brother Machia who was a carer, but he was not sure if this was with NDIS. The following discussion occurred regarding the prospect of his working with NDIS[61]:
[61] Transcript Day 1 p 29 line 7 – p 31 line 3.
‘MEMBER: Does your criminal record present any obstacle to taking that work, or don’t you know?
APPLICANT: I hope not.
MS TATTERSALL: So you haven’t really investigated it too much then?
APPLICANT: No. I didn’t think it was going to be an issue. But I’m hoping that nothing impacts that.
MS TATTERSALL: So do you need any qualifications to do that sort of work?
APPLICANT: I’m sure for NDIS you do. But I’m not sure for this. My sister also does it as well, and my mum.
MS TATTERSALL: Do you know what kind of work it is then?
APPLICANT: My sister, like, taking them to the toilet and helping them go to the toilet, cleaning up after them, and stuff like that, giving them their medication at lunchtime, taking them out to, say, the beach and just looking after them basically.
MS TATTERSALL: And would I be right in saying that you don’t kind of have any qualifications in kind of nursing and nursing services?
APPLICANT: Yes. I’ve never done it before.
MEMBER: Does your brother actually run a business, or does he work for someone?
APPLICANT: My mum does it as well. But I’m not sure exactly. Yes, but they all – all of them work doing the same job, yes. But they’ve all – they all get clients and they, my mum actually lives with one of her clients. So yes.
MEMBER: Okay?
APPLICANT: I mean if that doesn’t work out I mean my eldest brother is always prepared to take me as a worker as well, if I, you know, pull my head in and, you know, got the white card. He’s offered to, you know, when I’m ready though, to do stuff for him.
MEMBER: So you don’t presently have a white card?
APPLICANT: No. I’ve come close to doing it, but I have trouble with the ID. In order to have ID you need ID to get ID. So I’ve had dramas with that.
MS TATTERSALL: And are there any kind of other requirements, you know, like qualifications, courses that you need to complete?
APPLICANT: No. I just have to be ready. He said, ‘You can come work with me when you’re ready’. But if I didn’t, you know, doing what I had been doing ‑ ‑ ‑
MEMBER: Do you need a police clearance to do that sort of work?
APPLICANT: He’d have to tell you. I don’t think so though. He’s saying no.
MEMBER: He’s not in the witness box. Don’t communicate with the witness, thank you. Do not communicate with the witness. You do that again and I’ll have to exclude you from the room.’
The Applicant told Ms Tattersall that he ceased living with his nine year old daughter when she was three or four years old. He moved out before he was imprisoned in 2016 and did not see her so often then. He was in prison from December 2016 until June 2017 and then moved to Queensland. She now comes to Queensland twice a year if he is lucky. Other than that, his contact with her has been electronic.
The Applicant said that he saw his older brother’s children every month, and saw his sister every two weeks, but he did not see or speak to his sister or her children when he was using drugs, or alcohol, or was homeless.[62]
[62] Transcript Day 1 p 34 lines 13-18.
The Applicant was questioned regarding his denial of the commission of his cancellation offence at Ex R1 p 73, and the claim that his companion committed the offence at p 83. He said that he had panicked and did not know how to fill the form out properly[63], but he took full responsibility for the offence, and said that he agreed with everything that was said in the paperwork. The Applicant later took issue with whether the victim was going to or from the hospital, and claimed that the victim had been aggressive, and denied saying “if I had a gun I would shoot you.” He also denied making any other threat. The Applicant also denied that he had used a screwdriver and claimed that he had used a “plastic cylinder” off a tattoo gun, even though the use of a screwdriver appears to have been accepted in his plea of guilty and the concession made by his lawyer at the start of the hearing, and at para 6 of Ex A4 dated 8 March 2024.
[63] Transcript Day 1 p 35 lines 1-15.
He has used ice for a number of days during the week and on the night, he committed the cancellation offence and he was also “really drunk”.
The Applicant acknowledged his 2011 offending for robbery and two offences of assault in company, but claimed that he was merely present, and did not actually assault the victim even though he had pleaded guilty. He said “I was just there when it happened.” [64]
[64] Transcript Day 1 p 40 lines 26-27.
The Applicant also denied the facts recorded at ExR3 p 283 that he had produced a silver knife and threatened security:[65]
‘MS TATTERSALL: Okay. So if you then turn to page 283, so that’s relating to offending that was committed on 5 April 2012, and you were convicted on 26 June 2012 for unlawful assault and shop theft?
APPLICANT: Yes, your Honour. I mean, yes.
MS TATTERSALL: So do you accept that you produced a knife and threatened security?
APPLICANT: I don’t believe that’s what happened. I do – I do – I have no doubt I did steal from the place, and I was caught by security guards.
MS TATTERSALL: So you’re saying that what, again, you just pled guilty to unlawful assault, even though you didn’t have a knife?
APPLICANT: Well, pretty much, yes. Yes.’
[65] Transcript Day 1 p 41 lines 5-14.
The Applicant was referred to a series of his offences involving the possession of weapons in 2012 (knife), January 2013 (hunting knife and a slingshot), March 2013 (flick knife) and July 2016 (flick knife) but could offer no reason why he consistently seemed to be carrying weapons, other than that he had all his belongings on him.[66]
[66] Transcript Day 1 p 45 lines 12-33.
The Applicant was questioned by Ms Tattersall regarding a Victorian Police report of a Family Violence Intervention Order issued against him dated 6 December 2017 regarding an incident on 5 December 2017. The victim of the alleged family violence is referred to in the police record as AFM, standing for affected family member. In the ensuing extract of transcript, the Tribunal has, in the interests of the victim’s privacy, adopted this. So that the cross-examination can be read in context, it is convenient to first set out an extract of the relevant entries as summarised in Ex R2 at par 49:
‘Whilst the applicant was not charged with a family violence offence, the Victoria Police LEAP database records that, on 15 August 2017, it was reported to police that the applicant had committed a sexual assault (S28, 306-311). The records refer to the applicant attending the house of the affected family member (AFM), who he had been in a relationship with for two years, and had previously lived together and asking her to have sex with him. The AFM told police that she only said yes as she was scared of the applicant's response if she said no. During the sexual intercourse, the AFM told the applicant that she did not want to continue, but the applicant continued anyway. The applicant then went to make a phone call and came back to the bedroom and asked the AFM to have sex with him again; the AFM said no, but the applicant had sex with her anyway. After they had sex, the AFM said the applicant became aggressive towards her and she asked him to leave, but he said no. The AFM threatened to call the police and the applicant began trying to get her phone off her and pushed her to the ground. The AFM put her phone down her pants but the applicant put his hands down to retrieve the phone. The applicant eventually left and the AFM called the police to report the matter (S7, 309). Upon police attendance, the AFM was distressed and informed them as to what happened (S28, 309). The AFM later told police that she did not want to make a statement about the incident, the complaint was withdrawn and the IVO was cancelled by the Court (S28, 310-311).’

The cross-examination of the Applicant in relation to the above episode proceeded as follows:[67]
[67] Transcript Day 1 p 45 line 34 – p 49 line 24.
‘MS TATTERSALL: An intervention order was issued against you in 2017, and that was in Melbourne. Do you recall that order being issued?
APPLICANT: Yes, I do. Yes, I do.
MS TATTERSALL: Do you recall why it was issued?
APPLICANT: Because their mum didn’t want us seeing each other anymore because it was getting – she was going home and complaining about her whereabouts all the time, so she needed to make a story up that it was because we were together and, yes. If you asked me about the incident, I can tell you. We were living together, and to lock the front door you had to leave out the back door. And I jumped the back fence and the neighbours got called – called the police, and the police officers said that I had a DV restraining order in place for her mother. And that the police said, ‘You didn’t’ – ‘Even though you don’t have to do anything or show up to court, we’re placing this order just for you guys’ safety’, but later on it got dropped, and the reason for it because I jumped the back fence to enter the house which I was no longer staying at anymore. At that time, I was told to have conditions by staying away from the daughter and, yes, I entered the building – the place and, yes, I didn’t know that my girlfriend had filed a statement, but later on down the track got thrown out or she dropped the charges or something.
MS TATTERSALL: Okay. So we might just take that back first. You were living?
APPLICANT: Yes, I was living with them.
MS TATTERSALL: And so what was the name of the person you were living with?
APPLICANT: AFM.
MEMBER: Sorry?
APPLICANT: AFM.
MEMBER: Can you spell that for me please?
APPLICANT: AFM
MEMBER: Yes?
APPLICANT: AFM
MEMBER: Yes, thank you.
MS TATTERSALL: And so you were living – you’d been living with AFM as well as her mother?
APPLICANT: Yes, and there was an accusation that I’d – I’d jumped the back fence and entered the back door which is the way that we usually get through the house anyway, and that
MS TATTERSALL: I might just stop you there and we’ll take it one step at a time?
APPLICANT: Yes.
MS TATTERSALL: You accept that you jumped the back fence and entered the house that way?
APPLICANT: No, that’s just how we would normally enter the house when we didn’t have a – because we didn’t have a house key.
MS TATTERSALL: Okay. Do you accept that that’s how you entered the house, so that part of the records is correct then? Where someone saw you jump the fence and enter the house?
APPLICANT: No, I wasn’t in there when the warrant was issued. The police just put it on me later on, like, it was – it wasn’t the same day. That’s what they’re saying that I did. I just got a thing by the police officers saying that I had a restraining order for 60 days or something like that, and that’s all that happened. There was no incident that happened.
MS TATTERSALL: Okay. What I asked you about is you’re saying that you jumped the fence in order to enter the house, so you’re saying you did that regularly?
APPLICANT: Yes.
MS TATTERSALL: And how long had you lived at the house?
APPLICANT: Off and on for a year.
MS TATTERSALL: And at a certain point you were asked to leave?
APPLICANT: After I got – found out that there was a restraining order against me and stuff, and then the mum asked me to leave. That’s – yes, that’s when I realised that she’d obviously had something – a restraining order against me. I wasn’t aware of it, you see, until the cops put it on me.
MS TATTERSALL: Okay. You’re saying that no-one ever asked you to leave the house, or not stay in the house anymore until you were talked to by police?
APPLICANT: Not until I went back there, yes.
MS TATTERSALL: Were you and AFM in a sexual relationship?
APPLICANT: Yes.
MS TATTERSALL: And so did you live in the same room in the house?
APPLICANT: Yes.
MS TATTERSALL: And so were you aware, essentially, that she’d made some allegations that you had raped her?
APPLICANT: No, that’s not correct.
MS TATTERSALL: I’m not asking you whether or not you did, I’m just asking whether or not you were aware that she’d made those allegations?
APPLICANT: I was aware up until the other day that there was comments made, but nothing like that.
MS TATTERSALL: What were you aware of then? You said (indistinct)?
APPLICANT: I spoke to my lawyer about an incident how I was jumping the back fence and repeatedly demanded for something to happen. Obviously that what she told the cops or felt like she needed to say to the cops, I’m not sure.
MS TATTERSALL: I’m just really struggling to understand. You’re saying that you were in a relationship?
APPLICANT: Yes.
MS TATTERSALL: Her mother obviously knew you were in a relationship?
APPLICANT: Of course
MS TATTERSALL: You were living in the same room in the same house?
APPLICANT: Yes.
MS TATTERSALL: And then all of a sudden her mother put out a restraining order against you, and you have no idea why?
APPLICANT: And the police – the police put the restraining on us, yes, and I was asked to stay away for 60 days. They told me I didn’t have to show up to court, but I could if I wanted to, and that’s what I got told. And I also just got told by the lawyer the other day – we were going over the paperwork about what she’d said to the police, but I was never convicted or charged. The domestic violence or whatever it was got dropped, and that’s all that I’d been told.
MS TATTERSALL: Are you saying that up until the other day you had no idea that she’d made rape allegations against you?
APPLICANT: Not rape, no, but I’ve never been charged with rape. I’ve never committed an offence where that’s happened.
MS TATTERSALL: Again, I’m just asking were you aware of the allegations?
APPLICANT: Yes, I know what you were – I’m just saying that I was never charged, or it was never that – those allegations just were dropped, thrown out, like, I never been charged for that.
MS TATTERSALL: Yes. I understand that?
APPLICANT: So.
MS TATTERSALL: That certainly wasn’t my question though?
APPLICANT: Yes. Well, I’ve just explained to you what my lawyer said.
MS TATTERSALL: Yes. I’m just trying to understand what you were aware she’d said then. What you knew of the allegations if you didn’t think that they were rape?
APPLICANT: I definitely know they’re not rape, like.
MS TATTERSALL: You would have been aware back in December of 2017 that some allegations had been made in relation to your conduct?
APPLICANT: That there was me asking her for sex, but nothing to do with rape, no.
MS TATTERSALL: And so you said that the mother took out this – or reported to police and took out this order against you on the basis that?
APPLICANT: I didn’t say that. I said the police put the order out on us.
MS TATTERSALL: Well, you suggested earlier that that was because AFM had?
APPLICANT: Because her mum asked her to.
MS TATTERSALL: Okay?
APPLICANT: Because they decided to split us up. They didn’t want us together basically.
MS TATTERSALL: Were you aware at the time that her mother didn’t like the relationship?
APPLICANT: I had a rough idea but, yes. It was only because she kept coming back and not doing the right thing by her mum. So she was making up some stories that – the reason for it was that I was stopping her from going home on time and stuff like that, and doing the right thing.
MS TATTERSALL: What does a rape allegation have to do with her getting home on time?
APPLICANT: I’ve never raped anyone if that’s what you’re saying.
MS TATTERSALL: That’s not my suggestion?
APPLICANT: Yes, well
MS TATTERSALL: You’re saying that essentially this allegation was made up against you because her mother didn’t like the relationship, so I’m asking what the two really have to do with each other?
APPLICANT: I just told you that the police put the charge on us because that’s what police do, all right.
MS TATTERSALL: Well, someone has to make an allegation for a charge?
APPLICANT: Exactly right, and they got dropped and it got thrown out so I don’t know what you’re saying.
MS TATTERSALL: I’m trying to understand why an allegation was made, because you’re saying (indistinct)?
APPLICANT: Obviously it was made up and that allegation got dropped, didn’t it.
MS TATTERSALL: You’re suggesting it was made up because her mother didn’t like her coming home late?
APPLICANT: It was all kinds of reasons why. She was young, she was getting herself out of shit, wasn’t she? Sorry, your Honour.
MS TATTERSALL: Police put in place this intervention order, and that?
APPLICANT: That’s correct
MS TATTERSALL: Prevented you from going to the house?
APPLICANT: Yes, that’s correct. I was supposed to go to court, but they didn’t say that I had to go to court, but if I wanted to go to court to attend that I was supposed to attend.
MS TATTERSALL: Essentially, if you wanted to say anything in opposition of the intervention order?
APPLICANT: I’m not sure how they work. I’ve never had a charge where I’ve ever, you know, physically or anything like that – being charged for something like that because I’ve never committed anything like that, so I don’t know how it works.
The records say that although the complaint was withdrawn, the complainant still wanted the intervention order to proceed?
APPLICANT: That’s what the cops do. They proceed the.
MS TATTERSALL: And that order was active essentially for a two year period until December of 2019?
MEMBER: The audio doesn’t pick up a nod?
APPLICANT: Yes, your Honour. Sorry.’
The Applicant was then questioned regarding a Queensland DVO Report[68]issued on 20 July 2021, naming SK who committed suicide later that year as the aggrieved. The Applicant gave evidence that the complaint was made so as to provide a basis for an emergency payment to SK from Centrelink, and maintained:[69]
‘I’m pretty sure that nothing else had happened, like, my missus committed suicide. I don’t know why she did it, but that’s what happened, like, had nothing to do with domestic violence or nothing like that.’
[68] Ex R3 p314-315.
[69] Transcript Day 1 p 49 lines 8-11.
The Applicant was questioned regarding his alcohol consumption, and accepted that he had a problem with alcohol, and that his drinking had become a problem just before SK suicided[70].
[70] Transcript Day 1 p 51 lines 42 – 45.
When questioned about his drug use, the Applicant said “the major issue is ice.”[71]
[71] Transcript Day 1 p 52 line 32.
The Applicant was referred to Ex R3 p 120, and IHMS drug and alcohol induction screen report which recorded that he had last used heroin intravenously in the last two-three weeks and had been using it since the age of 20 for a few years on and off. He said that this entry was incorrect, and he had not used heroin for a long time.[72]
[72] Transcript Day 1 p 53 lines 30-31.
The Applicant was also referred to Ex R3 p7, an IHMS record of Dr Spencer that he had a “history of Suboxone and Heroin for the past 10+ years on and off. Has always tried to keep minimal use but uses daily. When he stops, feels fevers and restless few days.” The Applicant said “It’s not something I do or have done for that long in the past.”[73] He denied having used Suboxone and heroin for ten years.
[73] Transcript Day 1 p 54 lines 11.
The Applicant accepted that he had started using ice as a teenager and had smoked and used ice intravenously heavily since 2012 on and off, and other than a break of up to three months had used it consistently until his recent imprisonment.[74] He had not stopped using ice since SK passed away and had been in jail twice during that period.[75]
[74] Transcript Day 1 p 55 line 32 – p 56 line 3.
[75] Transcript Day 1 p 56 lines 9-11.
Asked about his past opportunities to rehabilitate, the Applicant said that he needed to address that when he gets out.[76] The Applicant said that he should have done rehabilitation years ago, and that it had always been available to him.
[76] Transcript Day 1 p 56 lines12-14.
The Applicant acknowledged that his 2013 community corrections order required his participation in treatment and assessment for drug abuse and dependency and offending behaviour programs, and that he failed to attend treatment.[77]
[77] Transcript Day 1 p 58 lines 16-21.
At the conclusion of cross-examination, the Tribunal put to the Applicant that it was implausible and improbable that two separate women acting independently of each other would make fabricated allegations about his conduct towards them to Police. The Applicant said the allegations were not true, and if they were he would have been charged and thrown in jail.
The Tribunal put both counsel on notice that it might make findings not made by the delegate regarding family violence and invited submissions to be made on this point.
During re-examination, the Applicant told Ms Ozherelyeva that he had never been forced to leave premises where he was staying. He also told her he was ready to commit to rehabilitation.
Evidence of Venus Hape
The witness gave evidence in chief in line with her statement before the Tribunal. At times, her evidence ventured outside the statement, and to that extent, the Tribunal has disregarded it as being in breach of the two day rule provided in s. 500(6H) of the Act.
Ms Hape described her violent relationship with the Applicant’s gang affiliated father who passed away in front of his children when the Applicant was five years of age. She described the family support that the Applicant had been given over many years. She acknowledged that he would need comprehensive support if allowed to remain in Australia, including mental health support and drug and alcohol rehabilitation. He had poor decision making and could not hold a job down 100%. He was good for a time and then the addiction started rearing up inside him. She said[78]:
‘when we reach out and we support him for a few weeks and then next minute he’s gone back to his drug addiction and his alcohol.’
[78] Transcript Day 1 p 74 lines 26-27.
There was no one in New Zealand to support him, and she expressed strong concern for his future in New Zealand.
In cross-examination Ms Hape told Ms Tattersall that the Applicant’s family had spoken to him a number of times about his drug and alcohol use going back to 2016. Family members would receive calls requesting help, then pick him up, take him home and look after him and after a week or so he would disappear, and then it would happen again.
AK had been coming to Queensland for stays with her of up to two weeks once, sometimes twice a year since 2021, most recently for three weeks over the Christmas holidays. She did not let the Applicant take AK, but he visited her, and they had outings together.
Ms Hape said she had realised that the Applicant had a drinking problem when he was 20 years of age. Alcohol and drugs were the cause of his offending. She had questioned him many times and he had not been up front about what drugs he was using. He had admitted drug use, but not what kind. She said she had no idea what kind of drugs he had taken, but said it altered his personality.
She was aware that he had engaged in shoplifting, burglaries and one violent offence when he had injured someone with an object. He had not told her of any other violent offending. She was prepared to spend the rest of her life helping him to get treatment, and historically had encouraged him to seek counselling.
The witness told the Tribunal that she knew her son was taking drugs prior to 2015, but only realised he had a serious drug problem in 2015. She had tried to get him to counselling four or five times. She and her children between them had probably collected him and given him food or money over thirty times. They had never refused him.
He had a standing invitation to stay at her place, and regularly chose to live on the streets instead.
Day 2
Dr Yoxall gave evidence in accordance with her report[79], and elaborated on elements of it. She spoke of the gaps and inconsistencies in the Applicant’s reports to her. He struggled to provide information in an organised chronological manner. He had large gaps in his memories of his childhood, developmental, and offending years. There were also inconsistencies as to the type and amount of drugs he used.
[79] Ex A5.
Her key conclusion was[80]:
‘…his risk of reoffending is directly related to his ability to maintain abstinence from drugs of dependence. That is the key factor. If he is not able to do that, then his risk of reoffending is moderate to high. If he’s able to do that, then his risk of reoffending drops substantially, and can reasonably drop to low. But he’s certainly – his key indicators and his key risk factors are all about managing his drug dependence and mental health, so drug dependence first, and mental health is tied into that.’
[80] Transcript Day 2 p 4 lines 29-35.
The Applicant had protective factors, some of which were present during his offending. He had prosocial family support predominantly through his mother and siblings. His relationships with key individuals in his life were now stronger than they had been in the past. Dr Yoxall said the availability of stable accommodation had not been there in the past. An offer of employment was not a protective factor, as it was only an offer, but if he was employed in a stable way that would be a protective factor. Employment supported by family members would have a greater chance of support. The most important factor was the Applicant’s willingness and openness to engage in rehabilitation and treatment, which was not there before. Over a short period of time he had demonstrated the most substantial and sustained engagement that he had demonstrated. He was not just reading and listening to things, he was engaging with them.
It was her strong opinion that he needed to continue to engage in treatment and rehabilitation. In New Zealand he would not have the roadmap he would have in Australia. He would be without the protective factors of his mother and siblings. Forced separations from his family and daughter were likely to destabilise his mental health. He would have no family, employment, or accommodation supports in New Zealand. His prognosis in New Zealand would be poorer than it would be in Australia.
Cross-examination
Dr Yoxall agreed with Ms Tattersall that a person’s ability to be forthright in relation to previous drug use was relevant to risk of reoffending. She was them referred to page 11 of her report and asked what heroin use she was aware of. Her response was that her understanding had changed over time. She said that over the long period that the Applicant had used methamphetamine he had sought other drugs including heroin and Suboxone when it was not available. She was aware of inconsistencies in the duration and details of that. Her understanding was that his use of Suboxone and heroin spanned the ten years he had used methamphetamine. Some of the IHMS and other records were consistent and inconsistent. She saw his use of Suboxone as an opioid dependence, as it was used in OSTPs. When he has used it, he had sourced it illegally without a script.
Dr Yoxall also agreed that his main dependence was to methamphetamine, and that he had a secondary dependence to opioids including Suboxone and heroin. She considered he suffered a polysubstance dependence: opioid; methamphetamine/amphetamine described as amphetamine in DSM, and alcohol. A relapse to using alcohol would suggest a relapse to substance abuse.
The following exchange occurred regarding the Applicant’s evidence[81]:
‘MS TATTERSALL: If the Applicant’s evidence, essentially, was that he had tried both heroin and Suboxone but had never used them and had never used them over a period of 10 years, would that be of concern?
DR YOXALL: ‑Yes, it would.
MS TATTERSALL: Can you explain that, please?
DR YOXALL: I can. It would be – it would be a concern in – on different levels or in terms of different – for different reasons. One, it would be inconsistent to what he’s reported to health practitioners that he’s seen under the IHMS. Two, it would be inconsistent with what he said to me. He said to me much – what he’s spoken to me about in terms of use has generally been more about Suboxone than heroin, and I’ve just described how; using it when he couldn’t access other substances. So there’d be an issue there of inconsistency and potentially honesty. There would also be a concern in my mind around his involvement in an opioid substitute treatment program if he doesn’t have an opioid dependence.
MS TATTERSALL: Essentially, the concern would be that he’s using that program in order to essentially feel the effects of some kind of – or feel some further effects when he’s not actually needing?
DR YOXALL: Well, this is where the dilemma comes when you don’t – when you have missing information. One, there’s multiple interpretations of that. One interpretation of that is he has a poor understanding of drug dependence and evidence-based treatments and mechanisms of treatment, and he thinks that OSTP is going to help him with any type of dependence, at which leads to the motivation to get on such a program, when, in fact, OSTP targets different receptors and isn’t going to assist with a methylamphetamine dependence. So that’s one interpretation. Another interpretation – and, of course, these are speculations – would be that Buvidal or any OSTP provides some sort of substance that replaces a feeling that one is wanting, like one may, you know, substitute one thing for another. So to use a non-illicit example, eating more chocolate when you’re coming off tobacco, drinking more alcohol when you’re coming off tobacco. So I can’t – if all – if those pieces and facts are correct, and I’m not suggesting what you’re saying to me is wrong, what I can’t do is say what that means. It could mean many things, and those are two things it could mean.’
[Tribunal emphasis]
[81] Transcript Day 2 p 8 line 29- p 9 line 14.

The Applicant is a 34 year old man who came to Australia at the age of 10 years in January 2010, and has resided here since. He has never departed Australia. He has been resident in Australia during the bulk of his formative years, and this is given considerable weight in his favour.
His mother, three adult siblings and his nine year old daughter, and numerous nephews and nieces all live here, (hereinafter referred to as his family unit) and have the right to do so indefinitely. He appears to have a strong family unit. He has limited contact with family members outside his family unit.
His family unit, and social and employment networks are in Australia, and he has nothing in New Zealand. It is accepted that the Applicant’s deportation will substantially impact all members of his family unit as it will in essence, shatter the family unit as was submitted. There is insufficient evidence before the Tribunal to determine the impact it would have on family members outside his family unit.
In addition to the impact of losing a loved family member, his family unit will be burdened with an enduring worry about his capacity to survive and fend for himself in New Zealand. This weighs heavily in the Applicant’s favour.
The Applicant’s daughter, who will turn 10 in October 2024, is an Australian citizen. The Applicant spent time with her when she was a baby but was absent for a substantial part of her life. Recent efforts to build a relationship with her have been limited to some degree by his circumstances, and the fact that she ordinarily lives in Victoria, but appear to have borne fruit. Those efforts will be substantially put to nought in the event that he is deported, and the survival or further development of the relationship will be at great risk. The Tribunal notes and accepts Dr Yoxall’s evidence of the potential life-long psychological impact a forced separation could have on his daughter. This weighs very heavily in favour of the Applicant.
The strength, nature, and duration of the Applicant’s ties to Australia weigh very heavily in favour of revocation.
Conclusion Primary Consideration 3
Primary Consideration 3 weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are two groups of relevant minor children who will be under the age of 18 at the time of decision, the Applicant’s daughter, and his minor nephews and nieces. These groups will be considered separately.
Part 1 – The Applicant’s daughter, AK
The Applicant’s daughter, AK, is nine years old, an Australian citizen, and lives with her mother in Victoria.
Paragraph 8.4(4)(a) Nature and duration of relationship
The relationship is parental and existing however the Applicant is not AK’s primary caregiver. The Applicant was present in her life for the first two years, but there followed an extended period of absence in consequence of his lifestyle and associated issues, and this lessens the weight to be given to this consideration.
In recent times, with the cooperation of his daughter’s mother, and the Applicant’s mother the Applicant has been able to seek to build a relationship with his daughter, seeing her when she has come to Queensland to stay with his mother. These efforts appear to have succeeded.[126]The Applicant has current daily contact with AK by phone and saw her in-person in January and September 2023. The Tribunal nevertheless accepts the importance of his role in her life, particularly having regard for the evidence of Dr Yoxall.
[126] Ex R1 p 126.
Paragraph 8.4(4)(a) weighs moderately in favour of revocation.
Paragraph 8.4(4)(b) Likely future positive role
The full extent to which the Applicant is likely to play a positive future role in AK’s life very much hinges on whether he can maintain abstinence. The Tribunal is not confident that he can do this. However, there may be some scope for his doing so, being as the Tribunal notes that even with his dependency and other issues, the Applicant has been able to bring himself to at least contact and spend some time with AK, and judging by her letter, this appears to have paid dividends. There are no court orders which would impede the Applicant from playing a positive future role in AK’s life.
Paragraph 8.4(4)(b) weighs moderately in favour of revocation.
Paragraph 8.4(4)(c) Impact of prior conduct
There is no specific evidence before the Tribunal that the Applicant’s prior or likely future conduct has had or will have any negative impact on AK.
Paragraph 8.4(4)(c) is given neutral weight.
Paragraph 8.4(4)(d) Effect of separation
Having regard for Dr Yoxall’s evidence, the Tribunal accepts that forced physical separation from the Applicant may well have serious adverse consequences for AK’s emotional, physical and psychological development. He would be absent from milestone events in her life, and she would have limited opportunities to be in his presence. The Applicant has expressed the belief that JK (AK’s biological mother) would not facilitate AK’s travel to New Zealand to visit him, and the Tribunal accepts this.
The Tribunal also accepts that communication via telecommunication is no adequate substitute for physical presence.
Paragraph 8.4(4)(d) weighs very heavily in favour of revocation.
Paragraph 8.4(4)(e) Parental role
JK presently fills the parental role in respect of AK, and the manner in which she does so has not been the subject of criticism before the Tribunal.
Paragraph 8.4(4)(e) is given neutral weight.
Paragraph 8.4(4)(f) Views of the children
The Tribunal is prepared to infer from AK’s handwritten letter at Ex R1 p 127 that she does not want to see her father deported.
Paragraph 8.4(4)(f) weighs very heavily in favour of revocation.
Paragraph 8.4(4)(g) Exposure to family violence
There is no evidence before the Tribunal so as to enliven this consideration.
Paragraph 8.4(4)(g) is given neutral weight.
Paragraph 8.4(4)(h) Emotional trauma
There is no evidence before the Tribunal so as to enliven this consideration.
Paragraph 8..4(4)(h) is given neutral weight.
The Tribunal concludes that the best interests of the Applicant’s daughter AK weigh very heavily in favour of revocation.
Part 2 – Nephews and Nieces
The Applicant nominated six minor nephews and nieces who will be under 18 at the time of this decision[127]. Their ages range from four to 12 years.
[127] Ex A1 par 73.
There is no evidence from any of these children before the Tribunal.
There is however evidence from the Applicant’s brother Pairama Henry Peneha-Robinson that the Applicant is “the favourite uncle to my 3 kids and to the rest of our nieces and nephews … he is adored and loved by all our children.”[128] There is also evidence from Prudence Sutton whose three children “love their uncle and have a special bond and meaningful relationship with him … We would be so deeply saddened if Kaiwati was absent from our lives and that we would be unlikely to see him again if he was deported from Australia.”[129] In the same vein, the Applicant’s sister wrote “my children love their uncle soo [sic] dearly and have a deep bond with him and to take that away would be soo [sic] distressing for us all”.[130] The Applicant appears to have seen the children every few weeks generally.
[128] ExR1 p 131.
[129] Ex R1 p 132.
[130] Ex R1
Paragraph 8.4(4)(a) Nature and duration of relationship
In each instance, the relationships are non-parental, and this lessens the weight to be given to this consideration.
The relationships are nevertheless lifelong and appear to be genuinely loving. There is little specific evidence before the Tribunal in relation to his one on one interaction with his nephews and nieces. There is no clear evidence before the Tribunal of any direct contact between the Applicant and any of his nephews and nieces since his arrest for the cancellation offence.
Paragraph 8.4(4)(a) weighs moderately in favour of revocation.
Paragraph 8.4(4)(b) Likely future positive role
The Tribunal accepts that given the opportunity, the Applicant would resume the seemingly positive role he played in the lives of his nephews and nieces. He appears to have stayed away from them when he has been under the influence of drugs or alcohol, and it would seem that whether or not he overcomes his addictions, if he stays on that path, there is potential for him to play a positive role in their lives.
Paragraph 8.4(4)(b) weighs moderately in favour of revocation.
Paragraph 8.4(4)(c) Impact of prior conduct
There is no evidence before the Tribunal to suggest that any of the Applicant's past conduct or likely future conduct would have a negative impact on any of his nephews or nieces.
Paragraph 8.4(4)(c) is given neutral weight.
Paragraph 8.4(4)(d) Effect of separation
The Tribunal accepts that the Applicant’s nephews and nieces regard him with genuine fondness and affection and they will suffer emotionally if he is deported from Australia.
Whilst there is scope for contact via telecommunication, the Tribunal again accepts that communication via telecommunication is no adequate substitute for physical presence.
Paragraph 8.4(4)(d) weighs very heavily in favour of revocation.
Paragraph 8.4(4)(e) Parental role
The Tribunal has no reason to believe that each of the nephews and nieces are not currently being adequately cared for by their biological parents.
Paragraph 8.4(4)(e) is given neutral weight.
Paragraph 8.4(4)(f) Views of the children
The Tribunal infers from the evidence referred to above that the Applicant’s nephews and nieces do not wish to see him deported.
Paragraph 8.4(4)(f) weighs very heavily in favour of revocation.
Paragraph 8.4(4)(g) Exposure to family violence
There is no evidence before the Tribunal to suggest that any of the Applicant's nephews and nieces have ever been exposed to, or at risk of any misconduct on the part of the Applicant.
Paragraph 8.4(4)(g) is given neutral weight.
Paragraph 8.4(4)(h) Emotional trauma
There is no evidence before the Tribunal to suggest that any of the Applicant's nephews and nieces have ever been caused emotional trauma by any misconduct on the part of the Applicant.
Paragraph 8.4(4)(h) is given neutral weight.
The best interests of the Applicant’s nephews and nieces weigh heavily in favour of revocation.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he 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.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the 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:
(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 possession 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.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.’
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[131]
[131] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 5
In Ex A1, it was conceded on behalf of the Applicant that he had undoubtedly breached the expectations of the Australian community, and that “as a norm” the Australian community expected the Australian Government not to allow him to remain in Australia.[132]
[132] Ex A2 par 83.
Various submissions were made on behalf of the Applicant regarding the applicability of the principles in paragraphs 5.2(4) to (6) of the Direction. The Tribunal accepts that the Applicant was not the holder of a limited stay visa, and that he had not been in the community for only a short time. The Tribunal also accepts that the duration of the Applicant’s stay in Australia entitles him to a higher level of tolerance than he might have otherwise received. The Tribunal accepts that the principle stated in paragraph 5.2(5) is applicable to the Applicant.
It was submitted that having regard to this, the harm from the Applicant’s “Subject Offending” as it was described in Ex A1, was not sufficient to extinguish the countervailing considerations of Primary Considerations 2-4. It was submitted at paragraph 90 of Ex A1 that whilst Primary Consideration 5 weighed against the Applicant, only minimal weight should be given to it. This submission was overtaken by the submission at paragraph 30 of Ex A4, that this should weigh in favour of revocation. However, this later submission was itself overtaken in oral submissions by Ms Ozherelyeva who submitted that it weighed very heavily against the Applicant[133].
[133] Transcript Day 2 p 24 lines 41-42.
The Tribunal nevertheless rejects the submissions of minimal weight made in Ex A1 and Ex A4. Police regarded the Applicant’s conduct as potentially life threatening[134], and the Magistrate appears to have taken a similar view when he remarked “you are very fortunate that the injury done to the victim was not more serious.”[135]. The Tribunal considers that the submission does not take sufficient account of Principles 5.2(1)-(3),(6), and paragraphs 8.1(2)(1) and 8.5(1) of the Direction. Any risk of the repetition of an offence involving life threatening conduct is inherently unacceptable. The Tribunal considers that the Australian community would strongly expect the Applicant’s Visa to remain cancelled notwithstanding the duration of his residence in Australia.
[134] Ex R3 p 740.
[135] ExR1 p 49 lines 11-12.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs very heavily against revocation.
PARAGRAPH 9: OTHER CONSIDERATIONS
Under the heading Other Considerations, paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
(a) Legal consequences of the decision
It was submitted on behalf of the Applicant that this was not a relevant consideration[136], and accordingly it is given neutral weight.
[136] Exhibit A1 par 92.
(b) Extent of impediments if removed
Paragraph 9.2(1) 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:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a) - Age and health

The Applicant is a 34 year old male with a history of homelessness, substance abuse and anxiety. It was submitted that his state of mental and physical health would impact his capacity to establish himself and maintain basic living standards in New Zealand. The Tribunal accepts this submission. The Tribunal also accepts that as a returning offender he may struggle to find accommodation and employment, particularly in view of his lack of skills or qualifications, and his very limited work history. These anticipated struggles may well exacerbate his mental health, which will no doubt in any event be challenged by his permanent exclusion from Australia and separation from his loved ones. There is no doubting that the Applicant has a hard road ahead of him.
Paragraph 9.2(1)(a) of the Direction weighs very heavily in favour of revocation.
Paragraph 9.2 (1)(b) Substantial language or cultural barriers
It has not been submitted that the Applicant will encounter any substantial language or cultural barriers on his return to New Zealand.
Paragraph 9.2(1)(b) of the Direction is given neutral weight.
Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country
The Applicant will have the benefit of guidance from the New Zealand Government, being subject to a Returning Offenders Order and supervision from the New Zealand Community Corrections under the Returning Offenders (Management and Information) Act 2015 (NZ). The Applicant would also have access to New Zealand’s social security and health systems which have been recognised as comparable to Australia’s.
Paragraph 9.2(1)(c) of the Direction is given neutral weight.
Conclusion Paragraph 9.2 Extent of impediments if removed
This consideration weighs very heavily in favour of revocation.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
It was submitted for the Applicant that this consideration was not relevant[137], and the Tribunal accepts this submission.
[137] Exhibit A1 par 99.
Paragraph 9.3 of the Direction is given neutral weight.
(d) Impact on Australian business interests
Paragraph 9.4(1) of the Direction requires that decision makers, must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
It was submitted for the Applicant that this consideration was not relevant[138], and the Tribunal accepts that submission.
[138] Ibid par 100.
Conclusion as to Paragraph 9: Other Considerations
Overall, the Tribunal considers that the Other Considerations weigh very heavily in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily against revocation;
·Primary Consideration 2 weighs very heavily against revocation;
·Primary Consideration 3 weighs very heavily in favour of revocation;
·Primary Consideration 4 weighs very heavily in favour revocation;
·Primary Consideration 5 weighs very heavily against revocation; and
·the totality of Other Considerations weighs very heavily in favour of revocation.
Primary Considerations have been given greater weight than Other Considerations. The Tribunal has had regard to paragraphs 5.2(6) and 8.1.2 of the Direction and considers that in this case, the nature of the Applicant’s conduct, and the harm that could be caused were it to be repeated is so serious that even strong countervailing considerations are insufficient to justify revoking the mandatory visa cancellation decision, and that any risk of its repetition is unacceptable.
Application of the Direction therefore weighs against revocation of the mandatory cancellation of the Applicant’s Visa.
The Tribunal is therefore not prepared to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made on 5 January 2024 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 408 (four hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.........[SGD]......
Associate
Dated: 1 May 2024

Dates of hearing: 14 and 15 March 2024

Solicitor for the Applicant:
Ms Tiffany Louise Ozherelyeva

Samuta McComber Lawyers

Solicitor for the Respondent:

Ms Elle Tattersall

Minter Ellison Lawyers

ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Section 501G documents

Various

16 January 2024

R2

Statement of Facts, Issues and Contentions

26 February 2024

26 February 2024

R3

Supplementary tender bundle

Various

26 February 2024

APPLICANT SUBMISSIONS

A1

Statement of Facts, Issues and Contentions

6 February 2024

6 February 2024

A2

Applicant’s First Tender Bundle

29 August 2023

6 February 2024

A3

Applicant’s Second Tender Bundle

Various

12 March 2024

A4

Applicant’s reply to Respondent’s submissions

8 March 2024

12 March 2024

A5

Applicant’s Third Tender Bundle

Tendered for Day 2

Various

12 March 2024

[2024] AATA 930

28 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Dates of hearing:	14 and 15 March 2024
Solicitor for the Applicant:	Ms Tiffany Louise Ozherelyeva Samuta McComber Lawyers
Solicitor for the Respondent:	Ms Elle Tattersall
Minter Ellison Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	16 January 2024
R2	Statement of Facts, Issues and Contentions	26 February 2024	26 February 2024
R3	Supplementary tender bundle	Various	26 February 2024
APPLICANT SUBMISSIONS
A1	Statement of Facts, Issues and Contentions	6 February 2024	6 February 2024
A2	Applicant’s First Tender Bundle	29 August 2023	6 February 2024
A3	Applicant’s Second Tender Bundle	Various	12 March 2024
A4	Applicant’s reply to Respondent’s submissions	8 March 2024	12 March 2024
A5	Applicant’s Third Tender Bundle *Tendered for Day 2*	Various	12 March 2024