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

Pera and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4582 (19 December 2022)
Division:GENERAL DIVISION
File Number: 2022/8032
Re:William Pera
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:19 December 2022
Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
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Senior Member D. J. Morris
Catchwords
MIGRATION – applicant held Special Category (Class TY)(Subclass 444) temporary visa – visa cancelled owing to substantial criminal record – representations made to Department – delegate declined to revoke mandatory cancellation – review by Tribunal – what is country of reference – applicant is from the Cook Islands and thereby a New Zealand citizen – ministerial Direction No. 90 – primary considerations – protection of Australian community – violent crimes and crime of family violence – other considerations – applicant came to Australia aged 10 – applicant found to have mild intellectual disability – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 43
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
New Zealand Citizenship Act 1977 (NZ), s 29
Cases
Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Secondary Materials
Ara Poutama Aotearoa Department of Corrections – FAQs for Returning Offenders Jan 2019 ( – accessed December 2022
Letters Patent Constituting the Office of Governor-General of New Zealand 1983 SR 1983/225
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation on character grounds and revocation of a mandatory cancellation of a visa (commenced 15 April 2021)
Parliament of the Commonwealth of Australia – Parliamentary Library – Research Paper Series 2016-17 – New Zealanders in Australia: a quick guide (updated 13 February 2020)
Quentin-Baxter, Dame Alison, DNZM, QSO; The Cook Islands, Niue and Tokelau as parts of the Realm of New Zealand; (2021) 52 VUWLR
REASONS FOR DECISION
Senior Member D. J. Morris
19 December 2022
BACKGROUND

Mr William Pera has brought his application to the Tribunal in that name. However, he is also known as William Pera Maurangi in certain documents before me. Both names will be cited in these reasons, as the context requires.
The Applicant was born in the Cook Islands and, as will be seen below, is a citizen of New Zealand. He was born in September 1996 and first arrived in Australia from New Zealand in 2007, aged 10. He has returned to New Zealand briefly on two occasions but has otherwise resided in this country.
Until October 2021, the Applicant held a Special Category (Class TY) (Subclass 444) temporary visa. This is a particular class of visa available to New Zealand citizens, which entitles them to enter Australia and reside in this country for an unlimited period, but it is not a permanent visa and does not confer permanent residency. When a holder of this class of visa leaves Australia, the visa expires. A new visa is then issued if the person re-enters the Australian migration zone.
On 4 October 2021, the Applicant received a notice from the Department of Home Affairs (‘the Department’) of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (‘the Act’). The basis of the cancellation was that a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was satisfied that Mr Pera had a ‘substantial criminal record’ under s 501(6) of the Act, on the basis of s 501(7)(c); and because he was, at the date the visa was cancelled, serving a sentence of full-time imprisonment for an offence against a law in Australia.
When a visa is cancelled that way, s 501CA(3) of the Act requires that the non-citizen be provided with a notice of the visa cancellation and particulars of the relevant information that formed the basis for the cancellation. The Minister or his delegate must invite the non-citizen to make representations about the revocation of the original decision in a specified period. The Minister may revoke the visa cancellation if satisfied that the person passes the character test in s 501 of the Act, or if there is ‘another reason why the original decision should be revoked’: s 501CA(4)(b).
It was not in dispute between the parties that Mr Pera had made representations within the stipulated time period. On 27 September 2022, a delegate of the Minister decided, first, that they were not satisfied Mr Pera passed the character test and, second, that they were not satisfied that there was another reason why the cancellation decision should be revoked.
That decision was notified to Mr Pera by letter dated 28 September 2022. On 2 October 2022, the Applicant sought review by the Tribunal of the decision not to revoke the cancellation of his visa, as he may do under s 500(1)(ba) of the Act. The Tribunal must make a decision on or before 21 December 2022, otherwise the decision not to revoke the visa cancellation is taken to have been affirmed: s 500(6L) of the Act.
HEARING
A hearing was held on 8 December 2022. Mr Pera was represented by Mr David Jonassen, his uncle, as a lay advocate. The Minister was represented by Mr Peter Turner of Minter Ellison. Mr Pera gave evidence and was cross-examined. Neither party called any other witnesses. Both Mr Turner and Mr Jonassen made submissions. At the conclusion of the hearing, the Tribunal reserved its decision.
The Tribunal had regard to a Statement of Facts, Issues and Contentions lodged by the Applicant (‘ASFIC’) and an equivalent statement lodged by the Respondent (‘RSFIC’). The Tribunal also had regard to other documents which were admitted into evidence; a list of them is annexed to these reasons.
TWO QUESTIONS BEFORE THE TRIBUNAL
In reviewing a decision not to revoke the mandatory cancellation of a visa under s 501CA(4) of the Act, the Tribunal is not reviewing the delegate’s decision. It is making a fresh decision based on the law and the information before it. Parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
There are two questions for decision. The first one is whether Mr Pera fails the ‘character test’ in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for ‘another reason’.
In considering whether there is another reason why the visa cancellation should be revoked, the Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ said, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
Therefore, if the Tribunal finds that the discretion available in s 501CA(4)(b)(ii) of the Act is enlivened, then the mandatory cancellation of the visa must be revoked.
Does the Applicant fail the character test?
Under s 501(6)(a) of the Act, a person does not pass the character test under s 501(6)(a) of the Act (‘substantial criminal record’) if under s 501(7)(c) the person has been sentenced to a term of imprisonment of 12 months or more.
Before the Tribunal (GD, pp 32-36) was an Australian Criminal Intelligence Commission national criminal history check (‘ACIC report’) dated 26 October 2021. The ACIC report records that, on 17 September 2021, Mr Pera was convicted in the Magistrates’ Court of Victoria of the following offences: Persistent contravention of Family Violence NTC/Order; Theft of a motor vehicle; Intentionally damage property; Commit indictable offence whilst on bail; Make threat to kill; Unlawful assault. He received an aggregate sentence for these offences of 14 months’ imprisonment, with a non-parole period of six months and with 61 days already served in custody to be reckoned as time served. In relation to the Make threat to kill offence, the Magistrate singled this out for a base sentence of 12 months’ imprisonment. Therefore, the base sentence for that offence, by itself, fulfils the requirement in s 501(7)(c).
At the beginning of the hearing, the Tribunal inquired of Mr Jonassen, and he said he agreed with the Minister’s submission that Mr Pera failed the character test, on the basis that he has been sentenced to a term of imprisonment of more than 12 months. The Tribunal notes that in the evidence (GD, p 43) was a Department file note recording that on 4 October 2021, the Victorian Department of Justice and Safety advised that the Applicant was serving a sentence of imprisonment on a full-time basis in a correctional centre in Victoria.
Finding in relation to the character test
The Tribunal is satisfied that the Applicant has a substantial criminal record under s 501(7)(c) of the Act (i.e., a term of imprisonment of 12 months or more) and thereby fails the character test. The Tribunal is further satisfied that he was serving a sentence of full-time imprisonment when his visa was cancelled, so in this case the cancellation was mandatory.
Having made that finding, the Tribunal must now address the second question: is there ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa?
IS THE DISCRETION THAT THERE IS ‘ANOTHER REASON’ ENLIVENED?
In considering whether there is another reason to revoke the mandatory cancellation of the visa, the Tribunal must comply with any direction the Minister has made under s 499 of the Act. On 8 March 2021, the then Minister made a direction under s 499, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Direction sets out mandatory ‘primary considerations’ which must be addressed if relevant to the circumstances of the non-citizen. The Direction also sets out some ‘other considerations’, noting it is a non-exhaustive list. It is important to note that the Direction does not confine the Tribunal’s task; it must look at any other relevant factor in the circumstances of the particular case.
The Tribunal considered the primary and other considerations in the Direction, as relevant to Mr Pera’s personal circumstances, his offending history, and the country of reference.
The country of reference
As a prefatory matter, it is desirable to establish the country of reference to which the Applicant would be liable to be returned, if the decision not to revoke the cancellation of his visa is affirmed. This is necessary because, in several parts, the Direction requires decision-makers to consider the country of reference in relation to a non-citizen.
Mr Pera was born in the Cook Islands. The Cook Islands is a self-governing state in free association with New Zealand. Unusually for a self-governing state, the Cook Islands does not have its own citizenship laws, nor does it issue passports. However, there is a Realm of New Zealand, comprising five geographic areas which acknowledge His Majesty King Charles III in right of New Zealand as Sovereign. The Realm of New Zealand consists of New Zealand; the self-governing state of the Cook Islands; the self-governing state of Niue; the dependent territory of Tokelau; and The Ross Dependency (the last being New Zealand’s claimed territory in Antarctica): Letters Patent Constituting the Office of Governor-General of New Zealand 1983 SR 1983/225.
Section 29(1) of the New Zealand Citizenship Act 1977 (NZ) provides:
Application of Act to Cook Islands, Niue and Tokelau
Whereas in accordance with Article 46 of the Constitution of the Cook Islands (as set out in Schedule 2 of the Cook Islands Constitution Amendment Act 1965) the Government of the Cook Islands has repealed and consented to the enactment of a provision extending all of the provisions of this Act to the Cook Islands as part of the law of the Cook Islands:
Be it therefore enacted as follows:
The provisions of this Act shall extend to the Cook Islands as part of the law of the Cook Islands.
Therefore, by operation of this statute, because the Applicant was born in the Cook Islands of Cook Islander parents, he became a New Zealand citizen at birth. That status, in turn, allowed him to be granted the class of visa he held as a resident of Australia.
In response to direct questions from the Tribunal at the hearing, Mr Pera said that he left the Cook Islands as a very young child with his parents when they moved to New Zealand. His mother subsequently migrated to Australia, with the Applicant and his siblings. His father stayed in New Zealand and died in 2010.
The Tribunal notes that the Department’s movement history for the Applicant (GD, p 77) records that he first arrived in Australia in July 2007. Since then, he has been out of Australia on two occasions, in March and April 2010 for 15 days and in June 2019 for three days. Mr Pera said each of these trips was to New Zealand, to attend funerals. Mr Pera said he had not returned to the Cook Islands since departing as an infant. He agreed that, should his visa not be restored, and he was deported to New Zealand, that is where he would intend to reside, not in the Cook Islands.
The Tribunal is therefore satisfied that the country of reference is New Zealand.
THE DIRECTION – PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. There is no evidence that Mr Pera has committed sexual crimes or crimes against children. There is evidence of violent crimes, crimes against women and acts of family violence.
Convictions – road traffic offences of July 2020
The Tribunal had regard for the transcript of proceedings before the Magistrate in September 2021. The Magistrate noted that Mr Pera had pleaded guilty to persistent contravention of an intervention order, theft of a motor vehicle, intentionally damaging property, making a threat to kill, unlawful assault and committing an indictable offence whilst on bail. His Honour said (GD, p 46):
You’re 23 and have 17 pages of priors going back to 2011 when you were 14 in the Children’s Court. Since you entered the adult jurisdiction in 2016 for attempted armed robbery in the County Court, you’ve appeared in this jurisdiction on no less than 11 occasions, including on contraventions.
Relevant for my purpose that in May of last year, you were sentencing to seven months’ imprisonment for similar serious family violence offending, including persistent contravention of intervention order, reckless conduct endangering life, recklessly cause injury, and using carriage service to harass. You’ve also been subjected to a number of community-based sentences for family violence offending which you’ve breached on multiple occasions.
The Magistrate went on to refer to the fact that Mr Pera had first been before him in June 2021 for persistently breaching an intervention order over a month in May or June 2020. His Honour said that these contraventions related to the following:
…numerous calls you made to the victim whilst you [were] in custody. The nature of those calls ranged from jealousy to expressions of love, to hints that the victim withdraw the matter.
The Magistrate noted that he had previously adjourned the matter in June 2021 so he could receive a full Community Corrections Order (‘CCO’) assessment and a justice plan. His Honour then said Mr Pera again committed family violence offending, within a month of being given the opportunity to stay in the community pending sentence. His Honour went on:
That offending involved attending at the victim’s property, you got into an argument with her which culminated in you grabbing the victim around her neck and strangling her for three seconds, whilst at the same time threatening to kill her. After you released her, she fled, and neighbours attended given the noise, and escorted her to safety.
Rather than walk away, you became aggressive and attempted to get inside the property, and threatened to go and get a butcher’s knife. Ultimately you went into the victim’s car and got a steering lock and used it to bang on the doors and windows before throwing a brick through the kitchen window. You entered inside through the window, and an argument took place before the police attended. In my view, you are incredibly lucky that for whatever reason, you don’t face charges in the County Court on indictment for this incident.
The Magistrate referred to Mr Pera’s personal history, noting he experienced learning difficulties and bullying at school. He then referred to a neuropsychological report prepared for Corrections by Dr Matt Treeby. Relevantly, His Honour referred to the Applicant commencing abusing alcohol in his late teens, regularly using cannabis since he was 19 and ‘meth’ daily between the ages of 16 and 19. The Magistrate also noted the conclusion of Dr Treeby that the Applicant has a mild intellectual disability which manifests in difficulties in problem solving and logical reasoning (GD, p 48).
The Magistrate referred to numerous opportunities Mr Pera was afforded by the Courts over the years, which led to further contraventions; and that he had been reluctant to engage in a meaningful way in regard to his drug use, and the trouble it had led him into in the past.
The Magistrate took into account Mr Pera’s plea of guilty and afforded him a full discount for that. He also took into account the more onerous nature of custody during the Covid-19 pandemic restrictions, and that there should be some moderation of the sentence owing to the Applicant’s intellectual disability, in terms of denunciation and moral culpability (GD, p 54).
In particular, the Magistrate noted his concern that even though the Applicant was aware of the potential effect on his migration status in June 2021 when he was in the process of being assessed for a CCO, he went on to commit further and more serious family violence offences. His Honour said that he regarded the incident that led to the threat to kill and unlawful assault charges as an aggravated assault on a female. He said:
The threat to kill is a very serious example, given it was uttered in circumstances where you had the capacity to end the victim’s life with your hands around her neck. The intensity of her fear, in my view, could not be understated.
The Magistrate went on to say that the strangulation was a particularly serious form of family violence because “it is an accepted red flag for intimate partner homicide in the future…”
In his oral evidence, under cross-examination, Mr Pera agreed that he engaged in family violence offending in May 2020 and that the victim involved was his ex-partner. He said he was at the time “drinking a lot and on drugs”.

Mr Turner then asked him about the circumstances of the more recent family violence offending in 2021, and Mr Pera said, “I was still coming off drugs and withdrawing.”
When asked why he made numerous calls from prison (report dated June 2020, SGD, p 8) to a person who he was not permitted to contact because of the terms of an intervention order (‘IVO’), Mr Pera responded: “I don’t know, to be honest”. He agreed he was aware of the IVO but nonetheless still called.
The Applicant agreed that the crime that led to the visa cancellation was one of a violent nature against a woman and that his ex-partner was fearful at the time.
In terms of earlier offending, Mr Pera was referred to the ACIC Report and agreed that he was first before the Courts in 2011 and had been before the Courts several times. He agreed that he was aged around 13 when he was first before a Court. Mr Pera said in response to a question from Mr Jonassen, “Everything went out of control after losing Dad in late 2010. I had no one to look up to. No one around but Mum.”
Mr Turner also referred the Applicant to documents produced under summons from VicRoads, which referred to Mr Pera’s traffic offence history (SGD, pp 161-165). Mr Pera acknowledged four charges of unlicensed driving had been proven without conviction in 2011 and 2013. He also acknowledged other offences, including recklessly placing another person at risk of serious injury, driving an unregistered motor vehicle, failing to wear a motorbike helmet, driving in a dangerous manner, and recklessly engaging in conduct that endangers life.
The RSFIC asserted that Mr Pera had never been issued a driver’s licence. When this was put to Mr Pera, he challenged that. Mr Turner referred to a certificate from the Secretary of the Victorian Department of Transport dated 31 October 2022 (SGD, p 165) stating that William Pera had not been issued a driver’s licence (in Victoria). The Applicant disputed this and said he obtained a driver’s licence at the Pakenham office of VicRoads in, he believed, 2019.
Mr Pera then produced from his wallet a State of Victoria Probationary Driver Licence with his photograph and birthdate, which expired in April 2021, and it was inspected by the Tribunal and the Minister’s lawyer. The Tribunal notes that the licence produced is in the name ‘William P Maurangi’. It did not have an apparent issue date. I accept that, for at least a period from around 2019 until 2021, the Applicant did possess a probationary licence. That fact does not detract from his admissions to disregarding Australian road rules, driving while unlicensed, and having a poor driving history.
The Tribunal notes that the Applicant first appeared before the Children’s Court in December 2011 (GD, pp 35-36). He was charged with Robbery (two counts); Failing to answer bail (five counts); Attempted theft from motor vehicle (two counts); Attempted theft of a motor vehicle (three counts); Criminal damage with intent to damage or destroy (four counts); Wilfully damage property; Theft from shop; Theft from a motor vehicle; Drive motor vehicle without licence (three charges); Failing to stop vehicle on police request; Go equipped to steal/cheat (two charges); Shop theft – less than $600; Reckless conduct endangering serious injury. No convictions were recorded for any of these charges, but he was placed on a Youth Supervision Order (‘YSO’) for 10 months.
In May 2013, he was before the Children’s Court again charged with Unlawful assault; Criminal damage with intent to damage or destroy; Recklessly cause injury (two counts); Affray; Intentionally cause injury; Burglary; Theft from shop; Possess controlled weapon without excuse. Again, no convictions were recorded, and he was placed on a fresh YSO for nine months.
Two months later, in July 2013, Mr Pera was before the Children’s Court, charged with Unlicensed driving; Use an unregistered vehicle on a highway and Failing to wear a motor bike helmet. No convictions were recorded, but he was placed on a good behaviour bond.
There was a gap in the offending history. Then in August 2016, the Applicant was before the County Court and convicted of Attempted armed robbery, Theft and Criminal damage with intent to damage or destroy. He was given a CCO and ordered to perform 75 hours of community work.
In November 2016, he was before the Magistrates’ Court and convicted of the following offences: Attempt to commit indictable offence; Intentionally destroy property; Unlawful assault; Intentionally damage property (two counts); Behave in a riotous manner in a public place (two counts); Commit indictable offence whilst on bail; Throw missile with intent to injure or damage property; Recklessly cause injury; and Criminal damage with intent to damage or destroy (two counts). A fresh CCO was issued, and he was ordered to perform 120 hours of community work.
In March 2017, he was before the Magistrates’ Court in Maryborough and convicted of the offences of: Threat to inflict serious injury; Criminal damage with intent to damage or destroy; and Intentionally damage property. On this occasion he received his first custodial sentence, of 82 days’ gaol.
It is not necessary to stipulate the remainder of Mr Pera’s criminal history. However, the Tribunal notes three further breaches of CCOs and further offences against the person, including unlawful assaults, attempted armed robberies and further property offences. He received a custodial sentence of seven months’ gaol in May 2020, as mentioned above, for the offence of Reckless conduct endangering life.
Paragraph 8.1.1(1)(a)(i) of the Direction states that violent and/or sexual crimes are to be viewed very seriously. The Applicant has not been convicted of any sexual offences. He has been convicted of several offences of violence against the person. Paragraph 8.1.1(1)(a)(ii) directs decision-makers to view very seriously crimes of a violent nature against women or children. There is no evidence before the Tribunal of any offending against children. There is, however, evidence of Mr Pera committing violent acts against two female ex-partners, on his own admission; and an instance of violent conduct directed generally towards members of his family, in particular his mother, at her residence. In her statement to the police, the Applicant’s mother said she felt some fear when Mr Pera became angry and requested an IVO.
Paragraph 8.1.1(1)(b)(iv) directs decision-makers to consider crimes in immigration detention. There was no evidence of any improper conduct by Mr Pera in immigration detention.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of offending and whether there has been any trend of increasing seriousness. The criminal history of the Applicant is frequent and melancholy. Where a non-citizen has offended as a minor and no conviction is recorded, the Tribunal generally treats this type of offending as misconduct and gives it a lesser weight than where a person is offending as an adult. I take the same approach in regard to Mr Pera; noting, however, that, from the outset of his first Court appearance, many of the matters for which he was charged as a child cannot be categorised as petty offending.
What is concerning is the frequency with which the Applicant has ignored the orders of Courts, whether they were YSOs or CCOs, bonds or other tools used by judicial officers. There is some cumulative effect of re-offending, which Mr Pera ruefully acknowledged in his oral evidence.
Paragraph 8.1.1(1)(g) of the Direction refers to whether the non-citizen has re-offended since being formally warned or otherwise made aware in writing about the consequences of further offending on his or her migration status. It is clear from the Magistrate’s remarks, reproduced above, that Mr Pera was fully aware that he might jeopardise his visa when he appeared in Court in June 2021, because submissions were made about that very fact. The Magistrate said (GD, p 50):
That prospect, that [of] being deported, and the need to (indistinct) that was alive when I told you in June you’d be addressed for a CCO, that you would have – that would have seen you stay in the community, and yet despite that, despite knowing you were close to that, again you offended, again family violence and more serious.
As His Honour spelt out, Mr Pera nonetheless went on to offend, in spite of being aware that it might affect his visa to stay in Australia. The Applicant’s conduct can be categorised as regular, serious, and sometimes of a violent nature. There have been periods of no offending, but several relapses, apparently driven by his drug addiction.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.
The Respondent contended that Mr Pera has been convicted of offences that involve assault and violence and that, should he re-offend in the same manner, the nature of the harm would be potential psychological and economic harm.
Of particular concern to the Tribunal was the oral evidence of the Applicant when he was asked about three named persons who have in the past had IVOs against him, two females and a male. He identified the two females as former intimate partners. He identified the male as a former employer. In terms of the females, Mr Pera said the IVOs were each taken out to protect them and to prevent him from having further contact. When Mr Turner asked the Applicant why a former employer would have sought an IVO, Mr Pera said: “I was chasing him around a work site and driving in a dangerous manner. We had a dispute; he took it the wrong way”. Mr Turner asked whether he intended on that occasion to cause this man harm. Mr Pera said, he did not. Mr Turner then asked whether he had intended to cause the man to be fearful. Mr Pera responded, “Yes, at the time.”
When the Respondent submitted that as many as 14 IVOs may have been issued against him, Mr Pera said, “Not as many as 14”. He said he recalled his mother obtaining an IVO but could not remember whether other family members had. He agreed that the IVO in relation to his mother was varied to enable him to live with her.
Mr Pera said he had undertaken certain courses in prison. He said he undertook a men’s behavioural change programme designed to help prisoners on release. In evidence was a certificate (SGD, p 71) that the Applicant had completed a Skating on ice programme in March 2022, which was a 27-hour course relating to methylamphetamine (‘ice’) and helping addicts not to relapse.
Mr Turner read to the Applicant the remarks of the Magistrate in June 2021, where he said (GD, p 52):
As best as I can ascertain, your prospects of rehabilitation, whilst alive, are at this point in my view guarded, given the seriousness of what I’m faced with, as well as your prior matters.
Mr Pera responded: “I honestly don’t intend to re-offend. Since being back in prison and incarcerated, I’ve needed help. I’m on medication, which is helping me a lot.”
In terms of his drug and alcohol history, Mr Pera said he started smoking cannabis aged 15, one to three grams daily. He said the last time he smoked cannabis was around July or August 2021. He said he last drank alcohol around the same time. In respect of ‘ice’, Mr Pera agreed he started using it aged 16 and said he last used it in ‘February, March or April 2021’. He agreed that he sniffed inhalants when aged around 14 to 16, but said he has not, since.
Mr Pera said he had some engagement with Youth Support + Advocacy Service (‘YSAS’), but they eventually said he had moved out of the age bracket for people they support and recommended he engage with Headspace. When asked directly by the Tribunal whether he did make contact, he responded: “Quite a few times. It was hard with work commitments to see them.” He then said he did not make any arrangements with Headspace.
The Applicant said International Health & Medical Services (‘IHMS’), the health service for persons in immigration detention, had made referrals for him in relation to drug and alcohol counselling and long-term counselling for anger management. He said that he is meant to see a psychologist in the same week as this hearing regarding his Post-Traumatic Stress Disorder (‘PTSD’).
Mr Pera said he did an ‘Ice and me – know the score’ course in prison in April or June 2022. He agreed that he had done the same course when previously in gaol (SGD, p 50) but still went on to offend when released into the community.
Mr Turner took the Applicant to a prison officer’s file note dated 28 October 2021, which relevantly said (SGD, p 51):
William had his AOD screening. I informed him he was found suitable for Know the Score, Skating on Ice and RRHR and I explained the programs to him. He is keen to participate as “it will look good for parole.”
Mr Pera told the Tribunal that he engaged with these courses, ‘except for the literacy one’, which the Tribunal took to mean the RRHR course. Mr Turner asked him: Was the reason to look good for parole? He responded: “Yes, but I didn’t get parole”. He then expanded, “Not just for parole, but for myself, to engage with the courses.”
Mr Pera agreed that he needs further counselling for his PTSD. He said he had not seen a psychologist outside the correctional system but had seen an alcohol and drug counsellor.
Mr Turner noted that a risk assessment tool was applied in April 2022 (SGD, p 61), which recorded a ‘high’ risk of re-offending and asked if Mr Pera agreed. He responded, “Yes.”
Mr Turner asked him about a recorded file note by a prison officer which stated (SGD, p 51), ‘He just wants to work and smoke marijuana’, and whether he agreed he said that. Mr Pera responded: “Not at all.”
In evidence was a report of Dr Matt Treeby, a clinical psychologist and clinical neuropsychologist (Exhibit A2). He examined Mr Pera in July 2019 on behalf of YSAS. Dr Treeby referred to medical records that the Applicant suffered an unprovoked stab attack in 2016 from unknown assailants. He was wounded on the neck and jaw and taken to The Alfred Hospital. He underwent a laryngoscopy, and the stab wounds were explored and closed. He had been taking amphetamines at the time of the incident and some substance-induced psychotic symptoms were referred to in the admission notes.
Dr Treeby administered the Weschler Adult Intelligence Scale – 4^th Edition (WAIS-IV), and several other tests. He noted Mr Pera’s evidence that he attended a specialist school environment for part of his childhood, which was suggestive of longstanding cognitive limitations. Dr Treeby found that the WAIS-IV overall outcome was that the Applicant fell into the ‘extremely low’ range with a Full-Scale Intelligence Quotient (FSIQ) of 67. Dr Treeby assessed verbal intellectual skills as ‘extremely low range’, but his visual/perceptual intellectual skills were ‘borderline’. Dr Treeby concluded:
Mr Maurangi has some longstanding cognitive limitations and his overall level of intellectual function falls in the mild intellectual disability range (FSIQ = 67…). Mr Maurangi will almost certainly experience greater day-to-day problem solving and functional difficulties compared to most other individuals his age due to his cognitive limitations and he may be eligible for support services under NDIS.
Dr Treeby recommended referral to a clinical psychologist for appropriate treatment under the Mental Health Better Access Scheme. It did not seem from Mr Pera’s oral evidence that this ever occurred. He said his only interaction with psychologists has been with Dr Treeby on this occasion for assessment, and through IHMS in detention. He did remember that he had undertaken a two-week detoxification course in, he believed, 2016 or 2017.
Overall, the Tribunal considers that the Magistrate’s assessment of Mr Pera’s prospects of rehabilitation as ‘guarded’ is also the Tribunal’s conclusion. That is not to say he has not expressed good intentions, but the unfortunate facts are that he has done courses in the past and then quickly reverted to drug taking and re-offending. Orders of the Court, such as CCOs, seem to have had little effect in modifying his behaviour. He swiftly re-offended, in a matter of weeks, while released into the community by the Magistrate for the completion of certain reports, at a time when he knew it might affect his visa. This fact is particularly concerning.
Mr Pera said in his evidence that he has not engaged with support services except for YSAS. Such engagement he has had has generally been in the protective environment of the corrections system. In terms of his engagement with YSAS, Mr Maleth Ouk, Senior Outreach Worker, wrote in a letter to the Tribunal dated 3 November 2022 (Exhibit A5):
Mr. Pera was a client of our service from February 2011 to January 2020. During his time with our service Mr. Pera developed a positive working relationship with multiple support staff. During his involvement with the service Mr. Pera successfully completed multiple Residential Withdrawal stays to address his alcohol and other drug use. Mr. Pera was also supported by our service to successfully complete Youth Justice and Community Corrections orders.
(Emphasis added.)
What is apparent from Mr Ouk’s letter is that Mr Pera had a long engagement with YSAS spanning nine years. This is to his credit, as it shows an acknowledgement that he needed professional support. However, what is also apparent is that the Applicant has undertaken several residential spells to address his drug and alcohol use but has, on his own evidence, been unable to shake off his addictions until entering prison in 2021 and, thence, detention.
Although Mr Pera denied that he had seen a psychologist other than when Dr Treeby assessed him, and since he has been in detention, there is a report from Mr Warren Simmons, consulting psychologist, dated March 2017 prepared it would appear at the request of Mr Pera’s then lawyers. The Applicant told Mr Simmons that in around October 2014:
…..he was feeling suicidal after having used methamphetamine for a week. A worker from YSAS recognised Mr Maurangi was having suicidal thoughts and took him to the local psychiatric unit where he was admitted, remaining for between one and two weeks. He recalled that he was sent to some type of accommodation service. However, they were unable to continue to support Mr Maurangi as he had no money with which to meet any expenses.
Mr Simmons administered the Kaufman Brief Intelligence Test, a screening test for intelligence that provides a rapid indication of a person’s intellectual ability and reported a verbal IQ score of 55, putting the Applicant at the 0.1 percentile. Mr Simmons, however, remarked that he felt the scores could possibly underrepresent his ability or, alternatively, indicate some cognitive damage from the period when he was inhaling solvents. On the basis that the Kaufman test was a rapid test and because of Mr Simmons’ qualifying remarks as to the result, the Tribunal prefers to rely on Dr Treeby’s more detailed assessment, undertaken more recently, in assessing Mr Pera’s overall intellectual disability as ‘mild’.
The YSAS officer, Mr Ouk, provided a report to the Magistrates’ Court (SGD, p 372) in which Mr Ouk records that Mr Pera presented with a drug-induced psychosis in February 2016 and, with YSAS support, was admitted to hospital for treatment. After discharge, he was placed in YSAS emergency accommodation, but this did not last because Mr Ouk reported that Mr Pera ‘quickly found himself relapsing back into daily methamphetamine use’. Mr Oak records a further successful residential detoxification in December 2017, after which YSAS assisted him in obtaining private rental accommodation, and Mr Pera commenced full-time work as a concreter. Mr Ouk said that things improved in 2018: the Applicant saw his general practitioner and a psychologist; and told Mr Ouk he participated in a Men’s Behaviour Change Program run by the Salvation Army, for support in developing new skills around controlling his anger and how to integrate this into his daily life (SGD, p 373).

It would seem that Mr Pera’s responses at the hearing about what support he has had in the community from clinicians, through residential admissions and in undertaking at least one anger management course, were wrong. The Tribunal does not conclude that he was deliberately misleading (unlikely since providing this information would be to his benefit) but does come to the conclusion that he either does not remember these interventions, or they did not have any significant long-term impact on improving his conduct. Perhaps both. It is consistent with the Magistrate’s conclusion that Mr Pera has been unwilling to address his drug addiction in any meaningful way.
It would seem from the IHMS clinical notes that alcohol misuse has not been the major problem for Mr Pera, although he acknowledged to the clinician he would overdrink sometimes. It is his cannabis and particularly methylamphetamine use that has been the major catalyst for his offending and antisocial conduct.
The prison records under summons report a couple of minor incidents, including a report by another prisoner that Mr Pera assaulted him. The Tribunal does not give this any weight because this report was not put in cross-examination, and there is no corroboration or any record of prison sanctions. There is another report of a Governor’s Disciplinary hearing where the Applicant and another prisoner had gone into a cell and took up fighting stances. Mr Pera was fined for this. However, on this material, the Tribunal does not attach any significant weight because there is no evidence of the instigator, and the report said no physical injury ensued.
There is, however, a report of the Applicant ringing a protected person ‘47 times’, detected because the telephone at the prison was monitored, and suggesting that he could book the person for a prison visit under a false name. This carries more weight because it was referred to by the Magistrate in his June 2021 sentencing remarks, and this conduct was admitted at this hearing by Mr Pera. The Applicant applied for parole and was considered by the Adult Parole Board on 18 March 2022, but parole was denied. There is no information in the Board’s letter (GD, p 56) to the Australian Border Force of the reason for the denial. The Tribunal reasonably surmises that the breaches by Mr Pera of a no-contact IVO while in prison would have contributed to the Board’s deliberations. In any event, it is relevant that the Board was not satisfied in March 2022 that the Applicant was suitable for release under parole conditions.
I find that there is a real risk of re-offending, and given the nature of previous offences, that real risk includes the prospect of further offences against persons and is an unacceptable risk. In making this finding, I have particular regard to the concerns expressed by the Magistrate about potential acts against intimate partners, should the Applicant not be able to regulate his anger, or should he revert to drug-taking.
This primary consideration weighs heavily against revocation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a) A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct (paragraph 8.2(3)(c)(iii)).
The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence; noting that the absence of a warning should not be considered to be in the person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence.
It is not necessary to repeat that Mr Pera accepts he has a history of family violence offending, nor to repeat the nature of the offending. The most recent strangulation offence involved an ex-partner. There was also earlier offending against another former partner. Both had IVOs to protect them from Mr Pera. In addition, he admitted that he had committed family violence conduct against his mother.
Mr Turner took the Applicant to a Victoria Police preliminary brief (SGD, p 94) which related to an incident at Mr Pera’s mother’s house. The report was dated 31 December 2016. It referred to a minor argument about the use of a mobile phone, which led to the Applicant becoming uncontrollably angry and going through the house smashing furniture. He broke doors and threw a microwave oven off a kitchen bench. He threw plates of food against the walls and then went outside and threw paving bricks through the front and rear windscreens of the family car. Mr Turner asked Mr Pera whether he accepted the police had accurately reported an exchange he had with them. He said it was accurate. The exchange read:
My mum doesn’t treat me with respect and I gave it back to her. I did it all. I pushed the furniture over, I smashed it. I threw the food, smashed the door and the mirror. I did say that, ‘I’ll cut your neck off you f-----g c---'. My mum was bringing the past back on me. Yep I picked up the bricks and smashed the car windows. I did it. I smashed it. I hope I caused $10,000 or $20,000 damage. I wanted to cause as much destruction as possible.
The Applicant agreed that his mother obtained an IVO to protect her from him. When asked about other family members that the police brief records were present and ‘crying and shaking nervously’, Mr Pera said he could not remember who else was there that day, other than his mother. The Tribunal is satisfied other family members were present, because a cousin provided a report to the police on the incident.
The Tribunal is satisfied that, because of the Applicant’s offending history, this primary consideration is engaged. It is further satisfied that it weighs heavily against him, because he has more than once committed family violence against former intimate partners, one very seriously, and has committed family violence conduct against his own family members. Accepting that he has not undertaken family violence programmes in prison because of the length of his sentence, the Tribunal is not reassured that Mr Pera has an appreciation of his real problems with anger management and his propensity to inflict physical and verbal abuse on people close to him, as well as damage their property.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Applicant names six minor children who he said were cousins. The Respondent asked him if he knew the dates of birth of these children, but he said he did not; however, he estimated their ages. The minor children were SC, who was seven or eight; MC, who was five or six; TC, who was two or three; KU, who he thought was aged nine or ten; TW, who is around two or three, and ZW, who he thought was four.
In respect of SC, MC and TC, Mr Pera said he last saw them in 2018 or 2019 when he visited their family. In respect of KU, he said she is the daughter of his cousin, and he last saw her in 2020. In regard to TW and ZW, he said they were his brother’s children and lived in a Victorian provincial city. He said they were ‘very young when we last met’, which he thought was in 2017 or 2018.
He said that the strongest relationship he has is with SC and MC, who he saw more of because the others live further away. He said he estimated he saw SC and MC about three times a year.
The Tribunal notes that Mr Pera does not have a parental role in relation to any of these children. On his own evidence, he does not see them frequently. It is accepted there is no evidence that he does not have a good relationship with them, when he does. It is also accepted that they, especially the older ones, would have developed some relationship with him and would be disappointed if he were deported.
This primary consideration weighs somewhat in favour of revoking the revocation of the visa, but the weight is not significant, because of the nature of the relationship between Mr Pera and the identified children.
Expectations of the Australian community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
(3) …
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women. As referred to above, Mr Pera has been violent to his mother and two women who were his girlfriends at the time, and his act of placing his hands around the neck of one of them was regarded as a very serious assault by the Court.
The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’ (see The Concise Oxford Dictionary of Current English, First Edition). The Direction has had earlier iterations, and an older version, which contained generally similar wording to paragraph 8.4, was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
Mr Pera came to Australia as a young boy but started offending in his early teens. There have been gaps in his offending, but it has involved assaults, property offences, several driving offences, crimes against the person, including domestic partners, and persistent breaches of court orders of various types. The Tribunal finds that the expectation of the community would be that his visa be revoked. This consideration weighs against revoking the mandatory cancellation of the visa, and somewhat heavily so.
THE DIRECTION – OTHER CONSIDERATIONS
Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including;
(i)the strength nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
International non-refoulement obligations (paragraph 9.1)
International non-refoulement obligations relate to a case where a person in prospect of being returned to a country where they may be at risk of a specific type of harm. As set out above, Mr Pera would be returnable to New Zealand, the country of his citizenship. He has raised a number of obstacles he says he will face if deported, but they are relevantly dealt with later in these reasons, under the consideration relating to the extent of impediments if returned. They are not of a nature that invokes Australia’s international treaty obligations.
As the country of reference has been found to be New Zealand, the Tribunal finds that this consideration is not engaged and weighs neutrally.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments Mr Pera may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers, and the social, medical, or economic support available to him if repatriated.
The IHMS clinical records indicate that Mr Pera is physically fit, although he is prescribed Mirtazapine (an antidepressant also used to treat anxiety and insomnia). He saw a psychiatrist, Dr Sally Chow, on 21 November 2022. Dr Chow identifies a diagnosis of PTSD. She records that Mr Pera told her he has had problems with depression and anxiety since childhood. Dr Chow also records:
Previously engaged with [H]eadspace as no longer able to see YSAS; didn’t see them for long. Mirtazapine – commenced in prison due to sleep problems. Stress.
In a section relating to medical history, Dr Chow records an ‘acquired brain injury secondary to substance abuse’ and refers to Dr Treeby’s report (Exhibit A2).
In July 2022, Mr Pera wrote, in a letter to the Department, ‘I am not able to receive support through NDIS, I plan to work’. In his oral evidence, the Applicant expanded upon that to say that he understood he could not become an NDIS participant because he is not an Australian citizen and does not have a permanent resident visa.
The Tribunal, under s 33 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), refers to a Commonwealth Parliamentary Library Research Paper titled ‘New Zealanders in Australia: a quick guide’. It relevantly says:
The NDIS has similar residence requirements as those applying to Australia’s social security system. To access the NDIS, a person must be an Australian citizen, hold a permanent visa or be a protected SCV holder. This means that New Zealand citizens who arrived in Australia since 26 February 2001 may not access the NDIS.
The Tribunal is satisfied that, in spite of Dr Treeby remarking that NDIS participation might be useful for Mr Pera, the Applicant is not actually eligible to be a participant, given he is a New Zealand citizen and first arrived in Australia in 2007.
In his ASFIC, the Applicant wrote:
If I was to get deported to New Zealand this will leave me in extreme distress as it is an unfamiliar country to me and somewhere I have only lived for a short period of my life. I have little to no memory of my younger years in New Zealand. Australia is where I have known most of my life and where [the] majority of my family and friends live…I’m worried that the lack of support I would have in New Zealand will cause more down hill battles in a time when I am trying to better my life. I want to be there for my family and especially my mum, also continue the bond I have worked hard for with my family over the last year and a half. The possibility of never seeing my family again causes me fear and anxiety.
In her written statement, the Applicant’s mother Mrs KM (Exhibit A3) relevantly wrote:
I am concerned about the possibility of my son getting deported to New Zealand. William is not familiar with New Zealand, when he lived there, he was a young boy. He will not have family support in New Zealand although, one of his sisters lives there she has a family of her own including younger children and a busy lifestyle. Unfortunately, she won’t be able to support William the way that the family here in Australia can. I am afraid not knowing what the future will hold for him. As I go through Kidney Dialysis this will add a lot of extra stress to me that he will be in another country where I would not be able to support him the way I would like to. If William remains here in Australia, he will be living with me and will have his own space as it is only my partner and I living at the house.
In terms of substantial language or cultural barriers that Mr Pera would face, I am satisfied that there would be no language barriers as New Zealand is predominantly English-speaking. In terms of cultural barriers, there is a substantial Cook Islander community in New Zealand, especially around Auckland.
In respect of medical and economic support available to Mr Pera, as a New Zealand citizen, he would have access to the New Zealand social welfare system, including assistance given to persons who have been patriated under s 501CA. Ara Poutama Aotearoa – the Department of Corrections in New Zealand, has published a document called ‘FAQs for Returning Offenders’ dated January 2019. This document relevantly states:
What if I have no money?
Work and Income in New Zealand is like Centrelink in Australia. They will talk to you about finding employment and can provide income support. They’ll sort out some immediate things to support you in the first few days and they’ll continue to work with you to support your relocation to New Zealand.
The Tribunal is generally aware that the New Zealand health system has a pharmaceutical benefits scheme broadly similar to that which operates in Australia. The Applicant would be able to make inquiries with the relevant agency about dispensing arrangements for the medication he is currently taking. Although he not eligible for the Australian NDIS, as a New Zealand citizen Mr Pera may have other New Zealand Government assistance programmes available to him which contain some of the same elements of support.

In response to a question from Mr Turner during the hearing, Mr Pera confirmed he has a certificate II and III in civil construction. He has some history of working as a scaffolder and concreter. One former employer, Mr Aggie Lazzaro, who owns a concreting work, wrote on 6 November 2022 (Exhibit A6):
I have personally known William Pera for a number of years, he actually worked in my company as a concreter. He was a reliable hard working employee with a really lovely nature. He was always on time and always showed up to work. He demonstrated great values to me, which is hard to find these days. He was a team player and has a great sense of humour. I wouldn’t hesitate to have William Pera back with my crew and I have position vacant for him.
This illustrates to me that Mr Pera, in spite of his regular offending and substance abuse, nevertheless, was able for a period to hold down full-time employment, evidently to the satisfaction of his employer. It would seem to the Tribunal, with this creditable background, that Mr Pera would be able to obtain employment in the building and construction industry if he were deported to New Zealand. There is some sign in the prison records of Mr Pera thinking about maintaining his work qualifications, because he asked a prison officer to obtain details from a former employer so he could update an earth-moving certification.
When asked directly by the Tribunal where his sister, who resides in New Zealand, lives, Mr Pera said he did not know. He said he did not know whether she resided on the North Island or the South Island. In the absence of any evidence that she would be able to assist him, and with the evidence of Mrs KM that she has young children and a busy lifestyle, I do not accept there is any evidence that he would be able to rely on her for support. I also accept that, having lived in Australia all his adult life, there would be some difficulties for Mr Pera navigating government services and what might be available to him, including in terms of support for his mental health condition. The Tribunal finds that this consideration weighs moderately in favour of revoking the visa cancellation.
Impact on victims (paragraph 9.3)
This part of the Direction requires the Tribunal to consider the impact of the decision on victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. A person in relation to whom he has directed family violence conduct is his mother, Mrs KM. Mrs KM has expressed a view, and she is supportive of Mr Pera staying in Australia. This is taken into account elsewhere in these reasons.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
Mr Pera arrived in Australia in 2007, aged 10. As recorded above, he has paid two very brief visits to New Zealand but has otherwise been in Australia continuously for the last 16 years. His mother and the majority of his siblings live in Australia, together with extended cousins, aunts, and uncles. The Tribunal is satisfied that, having spent more than half his life in Australia and all his adult life, he has developed strong links with this country.
His mother, Mrs KM, has written a statement of support, as has his maternal aunt, Mrs LM (Exhibit A4). The Applicant wrote that his mother is a New Zealand citizen. Though she does not have a permanent visa, Mrs KM does have the right to reside here indefinitely, so her interests should be taken into account.
Mr Pera told the Tribunal how his mother is undergoing dialysis treatment. She also, impressively with this regular medical requirement, does shift-work. The Applicant agreed that his mother has a long-term partner who lives with her and supports Mrs KM. The Tribunal notes a record in the IHMS clinical notes where Mr Pera told the clinician he regards his mother’s partner as a good person who was supportive. While tempered by the volatile incidents of the past, one of which is set out above and led to Mr Pera smashing up furniture at his mother’s house and damaging her car, the evidence points towards him trying to rebuild a good relationship with Mrs KM, noting he lived with her for a month before his arrest and then most recent custodial term.
Mr Jonassen said that the Applicant had lived with him for a period in the past and that he settled down for this period and became involved in prosocial activities, such as church, and avoided offending. I note that Mr Pera did face some disruption when younger, including living as a very young boy with his grandparents, not his parents, and then facing a very unfortunate series of deaths of family members in close proximity around 2010, including his father, which appear to have combined to have a significant effect upon him and, perhaps, the trajectory of his subsequent behaviour.
Mr Pera has made some positive contributions to the community in his work, noting especially the glowing reference of Mr Lazarro. This carries some weight. On the other side of the coin, his offending has been relatively extensive; however, his first Court appearance did not occur until 2013, when he had already been in Australia for six years.
I am satisfied that there would be a detrimental effect on his mother, Mrs KM, possibly a significant effect, if the Applicant’s visa were not restored. There would also be some effect on other members of the family, noting Mr Pera’s own evidence that he has liked to be ‘independent’ and has not always closely interacted with his own family.
Mr Pera suggested that part of his motivation for wanting to stay in Australia was ‘to care for his mother’. The Tribunal accepts this might have been a genuine sentiment, but Mrs KM has her own long-term partner and is living independently and apparently in permanent employment, in spite of the burden of regular dialysis treatment. I am not convinced she needs care from the Applicant, nor that he has particularly provided it in the past. However, factually, Mrs KM is not in robust health and, should her health deteriorate, it would be an added factor if Mr Pera were not in Australia or able to visit her.
The Tribunal finds that this sub-consideration weighs, relatively strongly, in favour of revoking the visa cancellation.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.
I note the recent Federal Court decision in Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, where Rangiah J, at [68] reminded decision-makers that any impact on Australia’s business interests must be considered, not just business interests of a particular scale or importance. Mr Pera has some work history since leaving school, which is attested to by Mr Lazzaro, and referred to in other papers before the Tribunal. He has undertaken two trade certificates as well as, on his evidence, a construction site white card and a traffic control certificate. It would appear that he has an earth-moving certification, which may need updating.
The second clause of paragraph 9.4.2(3) of the Direction leads the Tribunal to conclude that this sub-consideration does not attract any significant discrete weight. I do not consider the decision before the Tribunal, either way, would significantly compromise the delivery of a major project or service in Australia. This sub-consideration, therefore, weighs neutrally.
However, combining the two sub-considerations, the overall weight of the Links to the Australian community consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the Applicant’s visa.
SUMMATION
Findings in relation to whether the discretion is enlivened
In terms of the considerations the Tribunal is required to address in the Direction, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs heavily against revoking the mandatory cancellation. This is principally because of the risk of him re-offending and, the Tribunal concludes, the fact that risk is real because of his history of relapsing. The primary consideration relating to family violence committed by the Applicant also weighs heavily against him.
The primary consideration relating to the best interests of affected minor children in Australia weighs somewhat in favour of the Applicant, but not as strongly as it would be if he had a parental or more present role in relation to any of the cited children. The primary consideration relating to the expectations of the Australian community weighs against revoking the visa cancellation.
In relation to the other considerations set out in the Direction, two weigh neutrally: those relating to international non-refoulement obligations and impact on victims. The consideration relating to the extent of impediments, if removed, weighs moderately in favour of Mr Pera. The consideration relating to his links to the Australian community weighs strongly in favour of revoking the visa cancellation.
The Tribunal cannot identify any additional special considerations that should be considered. The most recent professional assessment of Dr Treeby, in assessing the Applicant has a mild intellectual disability, is accepted, as is the Applicant’s evidence that he attended a specialist school for part of his primary education, which indicates a long-standing diagnosis of intellectual implication. The sentencing Magistrate, in relation to the offence which led to the visa cancellation, took Mr Pera’s accepted intellectual condition into account in weighing up the penalty. Accepting that Mr Pera’s assessed cognitive challenges are a special feature, this fact has contributed to the weight the Tribunal has attributed to the considerations relating to the extent of impediments if he is removed to New Zealand.
Part 2 of the Direction (at paragraph 7(2)) provides that primary considerations should generally be given more weight than the other considerations. Three of the primary considerations weigh against Mr Pera, two of them strongly. The remaining primary consideration goes in his favour, but only marginally. I do not conclude that the weight that I have found attaches, in particular, to the consideration relating to the Applicant’s links with the Australian community, is sufficient to outweigh the general exhortation in paragraph 7(2).
I therefore conclude that the discretion available in s 501CA(4)(b)(ii) of the Act is not enlivened, which in turn means that the decision under review was correct.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the reviewable decision.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................
Associate
Dated: 19 December 2022

Date of hearing:

8 December 2022

Advocate for the Applicant:

Mr David Jonassen (lay advocate)

Advocate for the Respondent:

Mr Peter Turner

Solicitors for the Respondent:

Minter Ellison

Annexe
Exhibits admitted into evidence at hearing
R1      Documents provided under s 501G lodged on 17 October 2022 (‘GD’ documents)
R2      Supplementary documents lodged on 10 November 2022 (‘SGD’ documents)
A1       IHMS clinical record, lodged 30 November 2022
A2       Psychological report of Dr Matt Treeby dated 8 August 2019
A3       Support letter, Mrs KM (Applicant’s mother), lodged 5 December 2022
A4       Support letter, Mrs LM (Applicant’s aunt), lodged 3 December 2022
A5       Support letter, Mr Maleth Oak, YSAS, dated 3 November 2022
A6       Support letter, Mr Aggie Lazzaro, dated 6 November 2022
A7       Support letter Mr KP, Applicant’s uncle, not dated

[2022] AATA 4582

19 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	8 December 2022
Advocate for the Applicant:	Mr David Jonassen (lay advocate)
Advocate for the Respondent:	Mr Peter Turner
Solicitors for the Respondent:	Minter Ellison