Pihama and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4153

Pihama and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4153 (15 December 2023)
Division:GENERAL DIVISION
File Number:2023/6968
Re:Tama-Joel David Pihama
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:15 December 2023
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 12 September 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
............[Sgd]............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include possess prohibited drugs, common assault, possessing stolen property, breaches of court orders, driving offences – Applicant is a 44 year old citizen of New Zealand who arrived in Australia as a 22 year old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor child – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to New Zealand –– Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) reg 2.55
CASES
Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 7(2), 7(3), 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(c)(i), 8.2(3)(c)(ii), 8.2(3)(c)(iii), 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
15 December 2023
BACKGROUND

The Applicant is a 44-year-old man who was born in New Zealand. He visited Australia for short trips in October 1996 and February 2000, before arriving to Australia to reside permanently on 8 June 2001 (G29/150-151).
On 18 January 2019, the Applicant was sentenced in the Perth District Court to a cumulative term of five years imprisonment for “sold a prohibited drug namely methamphetamine” and another cumulative term of two years imprisonment for “possession of a prohibited drug with intent to sell or supply (MDMA)”. He was also sentenced to six other terms of imprisonment to be served concurrently for four other drug possession offences and two offences of “possession of stolen or unlawfully obtained property” (G7/45; R2/96-97).
The Applicant’s term of imprisonment commenced on 14 September 2018 (R2/96).
On 25 March 2019, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G30/152).
The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 23 April 2019 (G8). He also submitted a personal circumstances form, submissions, and numerous character references in support (G9-G34).
However, on 12 September 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G4/12). This is the Reviewable Decision currently before me.
The Reviewable Decision (and documents pertaining to the decision) was sent by registered mail to the Applicant in prison in a letter dated 13 September 2023 (G4/9-11). According to reg 2.55(7) of the Migration Regulations 1994 (Cth), a person is taken to have received a document from the Respondent seven working days after the date of the document if the document is dispatched by pre-paid post. This means that although the Applicant stated that he received the decision on 20 September 2023 (G2/5), he is taken to have received the decision on 22 September 2023 (see also Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159 at [20] and [23]).
On 21 September 2023 he lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2). He was therefore within the nine-day period prescribed by s 500(6B) of the Migration Act, even though his application was lodged one day earlier than the day he was taken to have received it. This is because a valid application can be made, and was made, before the Applicant was deemed to have been properly notified under the Migration Act (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [71] and SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79 at [69]).
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 22 September 2023, meaning that I must hand down a decision on or before 15 December 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 22 and 23 November 2023.
The Applicant was self-represented. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
The hearing took place in person at the Perth Registry of the Tribunal.
The Applicant made submissions and gave evidence at the hearing in person on the first and second day.
The Applicant’s friend, Mr Adam Gates, who co-facilitated the Man Up program with the Applicant, gave evidence by telephone on the second day of the hearing.
I admitted the following documents into evidence at the hearing:
·Applicant’s submissions dated 1 November 2023 (Exhibit A1).
·Email from the Applicant dated 30 October 2023 outlining concerns regarding his minor child (Exhibit A2).
·Job Description Form (JDF) - Peer Support prisoners, including Appendix A-E (Exhibit A3).
·Character reference from KS, Bunbury Regional Prison Support Officer dated 31 October 2023 (Exhibit A4).
·Parole Order dated 6 October 2023 (Exhibit A5).
·Cover email dated 1 November 2023 attaching four Legal Aid letters dated 8 May, 18 June, 30 July and 15 September 2020 (Exhibit A6).
·Man Up related videos and Facebook posts (Exhibit A7).
·Photographs submitted by the Applicant (containing photo bundles 1-8 with corresponding cover emails) (Exhibit A8).
·Drawings from Applicant’s minor daughter, M (Exhibit A9).
·Starting Point and Baptism certificates (Exhibit A10).
·Christmas photos while in prison (Exhibit A11).
·Email dated 1 November 2023 from RS (Exhibit A12).
·Screenshot of Facebook message from MM (Exhibit A13).
·Letter from TH, Karnet Prison Farm Case Management Co-Ordinator dated 2 November 2023 (Exhibit A14).
·Screenshots of eCourts portal regarding Criminal Listing for TB (Exhibit A15).
·Email from JSR dated 4 November 2023 (Exhibit A16).
·Undated letter from the Applicant’s adult children, TP and KP (Exhibit A17).
·Undated letter from the Applicant’s former partner, VG (Exhibit A18).
·Undated letter from AG (Exhibit A19).
·Section 501 G-Documents, labelled G1-G35, comprising pages 1-199 (Exhibit R1 – for convenience I refer to these documents by their G numbers, for example, G1).
·Summons Bundle, labelled SB1-SB8, comprising pages 1-331 (Exhibit R2).
The Respondent lodged an amended Statement of Facts, Issues and Contentions (SFIC) dated 9 November 2023 prior to the hearing.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For 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; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.      that the person passes the character test (as defined by section 501); or
ii.     that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they 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 measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). On 18 January 2019, the Perth District Court imposed eight custodial terms of imprisonment, comprised of cumulative and concurrent terms, with seven of those terms being for 12 months or more.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s criminal history shows that he has committed a range of offences including driving offences, breaches of protective bail conditions, dishonesty offences such as possessing stolen or unlawfully obtained property, refusing to provide, or providing false details to police and multiple drug possession offences (G5).
The Applicant also has a conviction recorded on 12 April 2019 for “common assault in circumstances of aggravation or racial aggravation” (Aggravated Assault offence). Direction No 99 provides that certain types of offending should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). These offences include violent crimes. The Applicant’s Aggravated Assault offence was a road rage incident. The Applicant approached the victim’s car, shouted at the victim, and challenged him to a fight, injured the victim’s lip as he tried to take the victim’s keys out of the ignition, and successfully removed the keys and threw them into a road verge. The victim’s six-year-old daughter was in the car during the incident (R2/142). I find that this incident was very serious because it involved violence in the presence of a small child.
Direction No 99 requires me to consider both offences and conduct committed by the non-citizen, including acts of family violence, regardless of whether there is a conviction or sentence imposed (para 8.1.1(1)(a)(iii) of Direction No 99). As I discuss in the section on family violence below, the Applicant does not have any criminal convictions for family violence related offences. The Applicant admitted to this Tribunal and to the District Court (G7/47) to family violence conduct against VG, who is the mother of his minor daughter, M. This included backhanding VG in the face, cutting her lip open, and hitting her in the head with an open hand to the point that she had “cauliflower ears”. The Applicant also admitted to punching VG’s arm which resulted in bruises (transcript/79-80). This conduct should be regarded as very serious.
The categories of offences that can be regarded as “serious” or “very serious” are not limited to the categories of offences set out in in paragraphs 8.1.1(1)(a) and (b) of Direction No 99. Those categories are not, exhaustive, and other offences can be serious or very serious. The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]). The Applicant was also convicted of 16 drug-related offences in 2019. These include possessing prohibited drugs with intent to sell or supply, selling methylamphetamine, possession of prohibited drugs including cannabis, cocaine, MDMA, amphetamine and methylamphetamine and possessing drug paraphernalia on which there was a prohibited drug or plant. On 18 January 2019, the sentencing Judge described the Applicant as “dealing drugs regularly and at a significant level” and although he was not the “ring-leader”, the Applicant “played a significant role in the distribution of drugs into the community” (G7/41). One of the counts involved the possession of two ounces of methylamphetamine which the sentencing Judge described as “a particularly serious example of your offending” (G7/42). The seriousness is also reflected in the substantial term of imprisonment the Court imposed on the Applicant on 18 January 2019, which I discuss below.
The Applicant has convictions for driving offences between 2005 and 2018. These include “excess 0.08%” (2005), “drive contrary to learner’s permit” (2005), “no authority to drive – overseas or interstate” (2009), “no authority to drive (fines suspended)” (twice in 2010, 2018) and “unlicensed vehicle (owner/driver)” (2009, twice in 2010). Laws prohibiting driving whilst suspended or without being the holder of a valid licence, and laws prohibiting unlicensed vehicles from being driven are in place to ensure the roadworthiness of vehicles and to ensure that unsafe drivers are not on the roads, to protect the safety of other road users. Driving under the influence of alcohol is reckless because it impairs the driver, thereby risking the lives and safety of other innocent road users and pedestrians, and therefore it should also be regarded as serious. This Tribunal has often regarded driving offences as being serious. However, the Applicant’s driving offences (except for his “excess 0.08%” offence, for which he was fined $700) are at the less serious end of the scale, for example, as opposed to dangerous driving to escape pursuit by police. I also note that the Magistrates Court imposed fines for his driving offences of between $100 and $600 which indicates that they were less serious than, for example, driving offences where a sentence of imprisonment was imposed.
The Applicant has several fines. For example, he was fined $400 in 2007 for “fail to obey order given by an officer”, and $300 and $400 in 2016 for offences of “breach of protective bail conditions”. He was also fined $200 and $300 in 2016 for “give false personal details to police”. These fines are indicative that the Magistrates Court viewed these offences as being of a less serious nature, such that they did not warrant a custodial sentence of imprisonment.
The Applicant has also committed offences for which he has been sentenced to custodial sentences of imprisonment. On 18 January 2019 he was sentenced to a total term of seven years imprisonment for offences committed in 2015 and 2016 and was declared a drug trafficker. This was the sentence of imprisonment that formed the basis for the Cancellation Decision. This comprised cumulative terms of five years imprisonment for “sold a prohibited drug namely methylamphetamine”, two years imprisonment for the offence of “possession of a prohibited drug with intent to sell or supply (MDMA)” and six other concurrent terms of imprisonment as follows:
·One year and six months for “possession of prohibited drugs with intent to sell or supply”;
·One year and six months for “possession of stolen or unlawfully obtained property” and another term of one year for the same;
·Six months for “possess a prohibited drug (cannabis)”;
·One year and six months for “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”; and
·Four years imprisonment for “possession of a prohibited drug with intent to sell / supply (3,4-methylenedioxymethylamphetamine)”.
A term of seven years is a substantial term and reflects the seriousness of the offending. The Drug Trafficker Declaration made by the District Court also supports a finding that the offending was serious. Indeed, the sentencing Judge remarked (G7/44):
Having regard, however, to the seriousness of these offences, including the large quantities of drugs concerned and the attitude of the Court of Appeal in this state to offenders who deal in significant quantities of drugs, a sentence of imprisonment to be immediately served is the only appropriate outcome …
The Applicant was also sentenced to a concurrent term of imprisonment of six months for the Aggravated Assault offence, committed on 24 June 2018. The sentencing Magistrate stated that the sentence “has to be based on a number of factors including where I think this fits on the range of offences for this nature and it really does fit more towards the higher end in all the circumstances” (G6/34). I agree that the sentence for this offence also supports a finding that it was serious.
The Applicant was also sentenced to 14 concurrent terms of one month imprisonment each, on 6 August 2019 for a range of offences that were also committed in 2015 and 2016. These included four offences of “possessed drug paraphernalia in or on which there was a prohibited drug or plant”, three offences of “possess a prohibited drug (cannabis)”, two offences of “possession of stolen or unlawfully obtained property”, “possessed a prohibited drug (cocaine)”, “possess a prohibited drug (methylamphetamine)”, “possess a prohibited drug (amphetamine)”, “breach of bail (fail to appear soon after)” and “unlicensed person possess firearm/ ammunition” (G5/31). Although these terms were concurrent and for one month, the imposition of a custodial sentence instead of, for example, a fine, suggests that the offences were sufficiently serious to impose a sentence of custodial imprisonment (para 8.1.1(1)(c) of Direction No 99).
The Applicant has been convicted of 11 driving/ traffic offences and 28 criminal offences between 2005 and 2019. His offending occurred between September 2005 and June 2018. He was fined in the Brisbane Magistrates Court for disorderly behaviour in 2000, but I have not counted that offence because, although he was fined, no conviction was recorded. He has often committed similar offences (for example drug possession offences) repeatedly. His offending history commences with more driving and traffic related offending and then progresses to more serious drug offences. Overall, I find that the Applicant’s offending is frequent and there is a slight trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99).
The Applicant has had 12 Court appearances for his offending, has received fines on numerous occasions, has breached bail, including committing drug offences whilst on bail, and serving custodial sentences of imprisonment. This would have placed a burden on the resources of police, corrective services, and the Courts. I find that there is likely to have been a moderate cumulative effect (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs (Department), including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). In incoming passenger cards dated 18 March 2007, 4 January 2008, and 28 November 2012 (G28), the Applicant ticked “no” to the box next to the question, “Do you have any criminal convictions?”. I note that up until 2016, the Applicant only had driving/ traffic convictions. As I noted above, no conviction had been recorded for disorderly behaviour in 2000. The Applicant nevertheless accepted that he should have disclosed them but said that he thought the question referred to “have I been to jail?” (transcript/59). Given the nature of the convictions I accept the Applicant’s explanation, which suggests that he did not intentionally seek to provide false or misleading information, and I do not draw any adverse inference.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has not received any such prior warnings.
The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant has committed numerous and frequent offences. He has also engaged in family violence conduct against his former partner, VG. His offending ranges from less serious offences for which he has received fines, through to a serious assault (the Aggravated Assault offence) and serious drug offences for which he received a total term of seven years imprisonment. There is a slight trend of increasing seriousness and a cumulative effect.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
The nature of the harm if the Applicant were to commit further drug offences is varied, they are generally, less serious than violent offences. Selling and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
The harm that could result to members of the Australian community if the Applicant were to commit another violent offence such as the Aggravated Assault offence could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims.
The nature of harm if the Applicant were to commit further general offences (for example dishonesty offences, such as possessing stolen property, unlicensed possession of a firearm or ammunition, breaching protective bail conditions or giving false details to police) is varied and may include financial and psychological harm to members of the Australian community and burdening the resources of police and the Courts. The nature of harm that results from such offending is generally less serious than the harm which results from violent offences.

The Applicant also has several driving/ traffic convictions including driving under the influence of alcohol, whilst unlicensed or suspended and driving an unlicensed vehicle. A primary purpose of road traffic and driving laws is the protection of road users. For example, prohibitions against driving whilst suspended exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against driving under the influence of alcohol and drugs ensure that innocent road users are not endangered. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 44-year-old man who, as I mentioned above, has been convicted of 11 driving/ traffic offences and 28 criminal offences between 2005 and 2019. His offending occurred between September 2005 and June 2018. Overall, this history of frequent offending suggests that there is a likelihood of future reoffending.
The Applicant was assessed by prison treatment assessors in December 2019 using the “Risk of Reoffending – Prison version” tool which assesses the likelihood of general reoffending. He was not recommended for criminogenic programs due to being assessed as a low risk of reoffending (R2/267). The Respondent has suggested that I do not place great weight on this assessment because it is utilised for purposes different to the considerations that the Tribunal is required to consider, including the availability of programs and the length of the sentence. I am not persuaded by this submission. It is true that the availability of programs can depend on the length of a sentence. For example, for a short sentence they may not be available. However, the assessment tool is an accepted formal psychological assessment tool and there is no suggestion in the materials that a lack of availability of programs contributed to the assessment being low.
In a parole order dated 6 October 2023 (A5), the Prisoners Review Board (PRB) granted the Applicant parole from 20 October 2023. At that time the Applicant was taken into immigration detention. The PRB decided that the Applicant‘s release on parole would not present an unacceptable risk to the safety of the community, citing seven reasons in support of the grant of his parole including his participation in voluntary programs, commitment to attend counselling in the community, his parole plan which included confirmed suitable accommodation and that supervision with conditions and monitoring would offer more protection to the community in the long term. The PRB also reasoned that the conditions of parole would further reduce the risk to the safety of the community. The conditions included attending random urinalysis, not to consume alcohol, not to enter licensed premises, to submit to random breath testing, to engage in mental health treatment, programs and counselling as directed and to engage in employment, training or job seeking. Thus, the assessment of risk by the PRB is somewhat different to the assessment that I must undertake because after the Applicant’s parole expires, he will be in the community without any monitoring or supervision. Nevertheless, the Applicant has a lengthy period of parole until 13 September 2025. The conditions and supervision during this period are likely to assist his rehabilitation and to abstain from drug use and assist with his reintegration into the community, which may in turn lower the likelihood of his reoffending.
The Applicant has a long-standing problem with drug use. He has used a range of drugs including cannabis, LSD, ecstasy, amphetamines, methamphetamines, smoked heroin once and had used prescription medication not lawfully prescribed to him. He had a significant cannabis habit in the past which culminated in daily use in approximately 2005 or 2006. He started using methylamphetamines in his twenties, but his use eventually increased to smoking approximately an ounce a week at a cost of approximately $8,000. When sentencing the Applicant on 18 January 2019, the sentencing Judge stated that: “The dominant cause of your offending was no doubt your entrenched history of illicit substance use and negative peer associations which comes with that” (G7/43).
The Applicant’s evidence was that he last used methamphetamine in approximately 2017 and, in response to a submission made by the Respondent, that his abstinence had been tested in the community because he was off drugs for approximately 18 months to two years prior to his going to prison (transcript/15). In total, the Applicant stated that he had been clean from drugs for approximately seven years (transcript/63-65). This lengthy period of abstinence will assist the Applicant to continue to abstain from drugs if he is released into the community. Further, the Applicant’s ability to remain abstinent has been tested in the community. During that time in the community the Applicant disassociated from negative peers and sought support from his aunt and cousins, attended church and became involved in the church community, including volunteering at Tenacious House (a residential recovery centre for men who have issues such as addiction and mental health issues), as well as becoming involved in the Man Up program. The Applicant was also working full time (G11/86). He has therefore demonstrated that he is able to successfully access support in the community to assist with his rehabilitation and to make positive use of his time. The Applicant will continue with this plan if he is released into the Australian community, and I note that he has a comprehensive parole plan and will continue to be on parole.
My impression of the Applicant was that he was genuine in wanting to turn his life around. Prison, detention, and the prospect of removal from Australia seem to have impacted the Applicant. He is concerned about not being present to be a good father and role model for his six-year-old daughter, M, and is concerned about her welfare (G10/85). He also wants to be present to teach his daughter about her Maori culture. He is particularly motivated by his six-year-old daughter, M, but was also motivated by the desire to be a good father and positive role model for his two older adult children, who have remained supportive of him and want him to stay in Australia. The Applicant stated (transcript/18):
I’d just like to say that M’s probably one of the biggest reasons why I have turned my life around. And doing it, it hasn’t been easy. I’ve had to acknowledge all the stuff I’ve done wrong, and work on it. I believe, like, not only be a positive role to her, I believe she needs me in her life, she needs a father in her life, and for support. Because I’m a Maori as well, for our culture as well.
… I think I could be more than a positive role model for her. And same with my oldest kids, I’m closest with my oldest daughter, KP, because she can tell me anything, you know, and I don’t judge her. She always lets me know she’s so happy that we’ve got that relationship, and I want to have that all my kids so I can be there to support them, and encourage them to do the right thing. And I guess with my experiences, you know, hopefully my experiences and having done the wrong things, but been able to turn it around, that that is a positive to them to show them that they can – it’s not about if you make a mistake, it’s how you come back from it, and don’t let it get you down so much that you just continue to do bad things.
As I have mentioned, in 2017 and 2018 before the Applicant went to prison, he volunteered on the weekends with a drug and alcohol residential rehabilitation program run by his church called Tenacious House. He would provide practical support such as transport to church or to activities such as mini-golf or the movies and would also provide social support by talking to the participants about his own experiences. He also completed the Man Up program which was also run by his church. He completed the program in 2017 and then became a facilitator where he would facilitate the program twice a week in two locations (transcript/25-26). The Applicant’s evidence was that he would continue to engage with Man Up in the community, even if he was returned to New Zealand. He plans to find employment and to engage in community work and to continue his involvement in the church (transcript/26). These factors are likely to be protective and will assist him not to reoffend.
The Applicant has also undertaken voluntary courses and counselling including (certificate of completion dates stated) (G27/115; 118-127; 141-143):
·8 February 2019: A Career Development Workshop conducted by Outcare.
·17 March 2021: An “Interview Skills Course” conducted by Outcare.
·23 July 2021: “Methamphetamine Program: A Brief Cognitive-Behavioural Intervention for Regular Amphetamine Users”, six sessions.
·7 September 2021: “Standing on Solid Ground”, a program about emotional intelligence for 50 contact hours.
·Between 28 March 2021 and 23 October 2021, the Applicant attended 25 Narcotics Anonymous meetings at Karnet Prison Farm.
·18 November 2021: “Peaceful Pathways” basic workshop run by Alternatives to Violence Project WA.
·14 April 2022: “Peaceful Pathways” advanced workshop run by Alternatives to Violence Project WA.
·6 October 2022: He has also trained to become a facilitator of “Peaceful Pathways”.
·24 November 2022; 14 to 16 February 2023; 13 to 15 June 2023; 3 August 2023: The Applicant has facilitated “Peaceful Pathways” Workshops for the Alternatives to Violence Project WA.
The Applicant also engaged in a prison fellowship program whilst in prison (G27/144-145) and was a peer support worker (A3). The Applicant’s engagement with Tenacious House, Man Up and voluntary programs and counselling concerning violence, drug addiction and consequential thinking shows an intention and a commitment to address his drug use and his offending behaviour. This may, in turn, provide him with strategies to abstain from drug use and not to commit further offences if he was released into the Australian community.
If the Applicant is released into the Australian community, he would have support from stable family members such as his aunt, cousins, and adult children, as well as other members of the community such as AG who is also a facilitator at the Man Up program and who appears to have undertaken a mentoring-type role for the Applicant (A19). I note that his cousins provided accommodation and support in the past from approximately September 2017 when he moved in with them. During this time the Applicant’s aunt was supportive of him and he started attending church with her, became a Christian and was baptised. However, he committed the Aggravated Assault offence in June 2018, which suggests that this support was not entirely protective in the past. Nevertheless, the Applicant’s aunt’s involvement, as well as support from other persons such as AG, seems to have helped the Applicant to engage on a positive path and their continued support is likely to be a protective factor for the Applicant in the future.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
·The Applicant has been convicted of 11 driving/ traffic offences and 28 criminal offences. He has also offended whilst on bail. This frequency of offending suggests a likelihood of future reoffending.
·His lengthy history of drug abuse for which he has not undertaken intensive treatment courses.
·The Applicant committed the Aggravated Assault offence whilst he had support from his church and family members, particularly his aunt who involved him in the church and his cousins who provided him with accommodation in their home.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
·Prior to going to prison, the Applicant reconnected with positive family members, started attending church, became involved in volunteer work with Tenacious House and engaged with, and became a facilitator in the Man Up program. He will continue these positive activities if released into the community.
·The Applicant was assessed by prison treatment assessors in December 2019 using the “Risk of Reoffending – Prison version” tool as being a low risk of reoffending and therefore was not recommended for criminogenic programs.
·The Applicant will be subject to a lengthy parole period if he is released into the community until 13 September 2025, subject to conditions including drug and alcohol testing which are likely to assist his rehabilitation and reintegration into the community.
·The voluntary rehabilitation programs and counselling that the Applicant undertook in prison and immigration detention suggest a willingness to address his addictions and his offending behaviour.
·His desire not to resume drug use, and his period of abstinence in the community, prison, and immigration detention for approximately seven years may assist him to stay drug and alcohol free in the community, which may in turn reduce the likelihood of his reoffending.
·The deterrent effect of the time the Applicant has spent in prison and immigration detention, his concerns about returning to New Zealand and being permanently separated from his six-year-old daughter, adult children and family members in Australia, and his desire to be a good role model to his children, noting concerns about his six-year-old daughter.
·Despite support from family and peers not being entirely protective in the past, that support assisted the Applicant to commence his rehabilitation and the Applicant continues to have that support.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a low to moderate likelihood of reoffending.
After also considering the nature of the harm that could result if the Applicant reoffended, which could be very serious, overall, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 weighed strongly, and paragraph 8.1.2 weighed moderately against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:
(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 (see paragraph (3) below).
(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.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being 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 non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 99 at para 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)           an assault; or
b)           a sexual assault or other sexually abusive behaviour; or
c)           stalking; or
d)           repeated derogatory taunts; or
e)           intentionally damaging or destroying property; or
f)            intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
The following definition, in paragraph 4(1) of Direction No 99 is relevant:
member of person’s family, for the purpose 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.
Paragraph 8.2(2) of Direction No 99, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a) of Direction No 99).
The Applicant has not been convicted of any offences involving family violence.
There is, however, some information or evidence from independent and authoritative sources indicating that the Applicant has been involved in the perpetration of family violence (para 8.2(2)(a) of Direction No 99).
The primary source of that information is the Applicant himself. The Applicant admitted that there had been domestic violence by him against three former intimate partners. I will now discuss this evidence.

The Applicant lived with and had intimate relationships with each of his three former partners. He has fathered children with two of the women. Each former partner is therefore a person who has had an intimate personal relationship with the Applicant and is a member of the Applicant’s family (para 4(1) of Direction No 99).
KH is the mother of the Applicant’s two adult children TP and KP. Their relationship commenced in July 2002 and ended in approximately 2006. The Applicant’s evidence was that he was not violent to KH throughout their relationship. However, towards the end of their relationship “over a course a few months” he “pushed” KH and verbally threatened her (transcript/83). Based on the Applicant’s evidence and other evidence I discuss below that is not sufficiently authoritative, there is insufficient evidence upon which I could conclude that the conduct constitutes family violence, as defined by paragraph 4(1) of Direction No 99. Although this behaviour could be regarded as violent or threatening, there is insufficient objective evidence upon which I can be reasonably satisfied that the behaviour coerced or controlled KH or caused her to become fearful.
The Applicant also admitted to having a “few arguments” that were “pretty heated” with another partner, KT. They were in a relationship for two to three years sometime between 2008 and 2015. He stated that “a couple of times” these arguments involved “a lot of pushing and shoving” (transcript/81). The Applicant did not accept that KT felt afraid of him. He said that he was more afraid of her (transcript/102). For the same reasons as KH, I am not able to be reasonably satisfied that the Applicant’s behaviour toward KT constitutes family violence, as defined by paragraph 4(1) of Direction No 99.
VG is the mother of the Applicant’s minor daughter, M. She and the Applicant were in a relationship from approximately 2015 to approximately November 2018 when the Applicant went to prison. The Applicant admitted to having “backhanded her in the face”, to having “cut her lip open” and when she fought back, he “whacked her in the head a few times with an open hand around her head, to the point where she actually got cauliflower ears”. The Applicant further stated, “there was a few times, you know, punching her in the arm, or something, leaving bruises on her, grabbing her by the arm” (transcript/79-80).
This evidence was consistent with admissions that the Applicant made in his evidence at the trial of the drug offences that the Applicant was convicted of on 18 January 2019 where VG was the Applicant’s co-accused for three of the drug offences. The sentencing Judge stated that she (G7/46-47).
… accepted [the Applicant’s] evidence at trial that he had been controlling and domineering towards [VG]. He admitted that on one occasion he assaulted you so badly that you received cauliflower ears and a split lip. There were also a number of witnesses who gave evidence in your defence that they saw injuries to your body, face and ears.
The Respondent also sought to rely upon some sources that I do not regard as being sufficiently authoritative in the context of this application. These sources contained significant redactions made by Western Australian Police of key information, including the victim or protected person’s names and other identifying information such as location addresses. Documents produced under summons should be produced without redactions. If redactions are required, the person producing the documents under summons can request that confidentiality orders can be made by the Tribunal. These redactions involved the Applicant having to be asked who he thought the documents related to. My impression was that the Applicant did his best to recall but was often trying to guess who the document related to.
These sources included detected incident reports for incidents that occurred on 7 February 2014 (R2/165-167) and 24 and 25 October 2016 (R2/173-175), most of which the Applicant could not recall or disagreed with during cross-examination. There was another incident report dated 14 September 2017 which the Applicant stated was “closer to the truth” (R2/178; transcript/107). This incident did not involve violence. It involved the Applicant coming to VG’s house and picking up his baby daughter and going into the spare bedroom with her and locking the door.
He was also taken during cross-examination to incident reports in the form of police call logs or running sheets of events. These reports list multiple dates, times, and actions, with very brief descriptions of events as reported by callers or observed by police. Again, the Applicant disagreed with the version of events suggested, albeit briefly, in these incident reports (R2/194, 206, 227-228).
The Applicant was also taken to restraining orders in the materials. He could not recall a restraining order dated 13 July 2012 but thinks that the person protected was possibly an old landlord who would not return items belonging to him due to a dispute over money (R1/182; transcript/88-89). He thought that another restraining order dated 15 October 2014 may have related to KH but could not recall why she applied for it (R2/184; transcript/93). He thought that another restraining order dated 3 July 2007 may have been taken out by KH because it referred to him returning to WA. He thought this restraining order may have been applied for because he took his two children to Queensland for a month without their mother’s permission because he thought they were in an unsafe environment with her (R2/187-188; transcript/86). He could not recall another 72-hour police order dated 20 August 2012 (R2/189) but thought it may have related to KH’s boyfriend at the time whom the Applicant had an argument with because he thought he was “cooking meth”, although he was not sure (transcript/92-93).
The incident reports are logs of police calls and call outs and are in abbreviated form. They are not documents that are used in any legal proceedings or that form the basis of any legal charges, such as statements of material facts. The detected incident reports contain more detail, but they are highly prejudicial in that they are based on the police version of events, are untested, did not result in any formal charges, and additionally, the police officer recording the information is not named. The Applicant tried his best to recall the incidents and persons that the heavily redacted restraining orders related to. The redactions were problematic, as I have already discussed. The restraining orders were also taken out ex-parte and did not result in any formal charges or breaches. I am therefore not satisfied that they amount to sufficiently independent or authoritative evidence that the Applicant has engaged in domestic violence conduct.
The evidence suggests that the Applicant was violent towards VG on more than one occasion, but the details of the frequency, and whether there was an increase in seriousness (for example if there were several incidents culminating in the serious assault referred to by the sentencing Judge on 18 January 2019) or whether there was any cumulative effect are unclear (para 8.2(3)(a), (b), and (c) of Direction No 99).
My impression of the Applicant’s evidence was that he was very frank about his family violence conduct and that he did not try to minimise it (para 8.2(3)(c)(i) of Direction No 99).
The Applicant was not asked if he understood the impact that the offending may have had (para 8.2(3)(c)(ii) of Direction No 99).
The Applicant has completed Alternatives to Violence Project WA workshops including a basic workshop and an advanced workshop (G27/121-122). He was invited to train as a facilitator, completed that training (G27/124), co-facilitated several workshops in 2022 and 2023 (G27/120-123) and helped to train other facilitators in 2023 (G27/127).
Similarly, the Applicant completed the Man Up program in 2017 and started facilitating in 2018. He stated that the course covered a broad range of topics including domestic violence and that it helped him to become accountable for what he had done (transcript/38). The Applicant’s description of what he learnt in this program showed some insight. For example, with respect to his behaviour towards VG, he stated that the course helped him to acknowledge:
… my controlling behaviour, jealousy, you know, being domineering towards her, the physical abuse. And not only acknowledging it, and apologising for it, but acknowledging the fact that if I don’t make a change, then where does leave us as a family, and our children.
Although the Alternatives to Violence Project WA workshops were not specifically about domestic violence, and although the Man Up program is a faith-based course that did not solely focus on domestic violence, I accept that they can be regarded as an effort by the Applicant to address factors which contributed to his conduct (para 8.2(3)(c)(iii) of Direction No 99).
The Applicant has not received any formal warnings about the consequences of further acts of family violence (para 8.2(3)(d) of Direction No 99).
After balancing the above considerations, I find that this primary consideration weighs moderately against the revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers 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 a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
•    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
•    more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
•    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has two adult children, a son, TP who is 19 years old, and a daughter, KP, who is 18 years old. They have both provided letters of support for the Applicant.
The Applicant’s son, TP has stated that if his father is not in Australia, he wouldn’t have the opportunity of a reliable relationship with him and that he had found it difficult not having his father to guide him. He also said that he wanted his father to be physically involved in his life (G13/90; G13/91).
The Applicant’s daughter, KP, wrote that she could rely on her father “no matter what” and that it had been “very tough” not having her father around when she was in high school. KP stated that she “could not imagine how much it would affect [her] if he got deported” (G14/92). In another letter she stated that, “I regularly visit my father and miss his presence” (G14/93).
There is a more recent statement from both KP and TP (A17) where they state, amongst other things, that they have a “strong bond” with their father and that “[t]he prospect of losing our father is causing immense distress and anxiety, I fear this separation will not only affect our emotional and physiological well-being but also hinder our personal growth”. They stated that the removal of their father from Australia will have a “profound impact … on our lives”.
His former partner, KH, who is the mother of KP and TP, provided an email of support dated 22 April 2019. She stated that KP and TP would be “distraught” if the Applicant was deported (G12/89).
I find that the Applicant’s adult children, KP and TP, are likely to suffer emotional detriment if he is removed from Australia.
In her email, KH stated that she remained friends with the Applicant. However, there are no more recent statements from KH and there is no evidence of the impact that an adverse decision in this application would have on her. However, her support of the Applicant is nevertheless suggestive of the Applicant’s ties to the Australian community.
The Applicant’s former partner, VG, who is the mother of his six-year-old daughter, M, has written several letters of support. She described maintaining regular contact with the Applicant, and the Applicant being a “supportive devoted father” (G11/86-87; see also G11/88). In a more recent statement (A18), VG expressed strong concerns that the Applicant’s removal from Australia would have a “traumatic effect” on their daughter. She concluded by stating that, “I eagerly await a positive response that will alleviate the distress and uncertainty currently plaguing our lives”. I find that if the Applicant is removed from Australia, VG may suffer emotional detriment because she will be worried about the impact of the Applicant’s absence on the well-being of M. She is also likely to suffer some practical detriment because she is intending to co-parent M with the Applicant (G11/87).
The Applicant’s children, KP, TP and M, are indicative of strong ties to the Australian community and I therefore give significant weight to these relationships (para 8.3(2) of Direction No 99).
The Applicant has an extended family in Australia with more than 20 uncles and aunts, more than 20 nieces and nephews and more than 20 cousins (G9/67). He is close to his aunt, JP, who wrote an email in support of him dated 14 January 2019 (G16/97). She is the aunt who was supportive of the Applicant and encouraged him to attend church with her. The Applicant is also very close to his cousins (MP, TWP and JOP) and their partners who want to continue a relationship with him and to support him if he is released into the Australian community. It was MP and TWP who provided support and accommodation to the Applicant for approximately two years prior to his going to prison (G32/173; G33/174; G34/175). Having close family members who are willing to provide him with assistance if he can remain in the Australian community are further indicators of the Applicant’s ties to Australia.
The Applicant also has numerous letters of support from friends. These include friends he met in prison such as RS (A12) and JR (A16). They also include friends he met whilst completing the Man Up program including DL (G17/98-99), AG who gave evidence in support of the Applicant at the hearing (G18/100; A19), JM (G19/101), SW (G20/102), CW (G21/103), and AA (G22/104). He also has letters of support from friends from his church, some of whom were also involved in Tenacious House, including MAB (G23/105), DE (G24/106) and SC (G25/107), and other friends, TV (G26/108) and MM (A13). Although some of these references were written in anticipation of the Applicant being sentenced, they are indicative of his ties to the Australian community.
The Applicant has been resident in Australia for 22 years, having arrived as a 22-year-old adult. Consequently, the Applicant has not been resident in Australia during his formative years.
The Applicant has made some positive contributions to the Australian community between 2017 and September 2018, when he went to prison. He coached at a rugby league club in 2005. He also volunteered at Tenacious House drug and alcohol rehabilitation in 2017 until he went to prison in 2018. This included driving participants between church and the rehabilitation facility, staying the night on Saturday nights to provide support and counselling, and otherwise providing counselling and support to participants based on his own experiences. He also helped in the car park at his church every second weekend including directing people towards parking spots. The Applicant also volunteered as a facilitator with a men’s program run by his church called the Man Up program. He completed the 15-week program himself in 2017 and started to facilitate and to assist with the facilitation of the program in two locations a week until he went to prison in 2018. However, I note that during this period, the Applicant committed a serious offence, the Aggravated Assault offence on 24 June 2018, and that his offending history over a period of approximately 13 years, is far longer than this period of positively contributing. I do, however, give some weight to these positive contributions.
The weight to be given to the length of time that the Applicant has resided in Australia is slightly diminished because, as I have already stated, he was not resident in Australia during his formative years and started committing traffic offences within approximately four years of arriving in Australia, with his first of those type of offences being committed on 15 September 2005 (R2/99).
The Applicant has strong ties to the Australian community. His adult son and daughter, minor daughter, aunt and cousins, who may be negatively impacted if he was returned to New Zealand, are all in Australia. He also has extended family members in Australia and numerous friends. His former partner, VG, who is the mother of his minor daughter; and his other former partner KH, who is the mother of his adult children, have also written him letters of support. The Applicant has been resident in Australia for 22 years and did not spend his formative years in Australia. He has made some positive contributions through volunteer work over a two-year period, which are to some extent counterbalanced by his offending over a period of approximately 13 years. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia nevertheless weighs strongly in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.4 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)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 Direction No 99 sets out the factors that the decision-maker must consider where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
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.
The Applicant has a six-year-old minor daughter, M, with his former partner, VG (G9/63).
In his personal circumstances form, the Applicant identified ZM (G9/65), who is VG’s son from a previous relationship as a minor child in his life and his relationship to the child as “friend”. In his personal circumstances form the Applicant stated that he supported ZM “financially and emotionally”. However, that support was likely in the past when the Applicant was still in a relationship with VG because the Applicant referred to seeing him when he stayed over for the weekends (G9/66). Also, ZM lives with his father in Perth but spends a lot of time with VG and so it is more likely that he is financially supported by his father. The Applicant estimated that ZM was 16 or 17 years old. The Applicant was not sure if he was working but thought ZM was still at school (transcript/51-52). There is insufficient information before me regarding ZM’s relationship with the Applicant to be able to assess the impact of my decision on ZM.
The Applicant also identified DB and JOB as minor children in his life (G9/65). Their mother JB was a friend of VG. The Applicant stated that he lost contact with JB and the children in approximately 2019 or 2020 (transcript/52). Therefore, they are not children who would be affected by my decision, and in any event, there is insufficient information upon which an assessment of their interests could be based.
The Applicant also identified a niece in Brisbane, AT (G9/65), but the hearing he confirmed that she was in her 30s and therefore not a minor child.
For completeness, I note that the Applicant has another 15-year-old daughter in New Zealand, MB, with his former partner, SB. Her interests are not considered in this section because it concerns children in Australia.
The Applicant’s six-year-old daughter
The Applicant has a six-year-old daughter, M, born in July 2017, whose interests will be affected by my decision.
The relationship between the Applicant and his daughter is parental (para 8.4(4)(a) of Direction No 99). When the Applicant was in prison, he spoke to M on the phone weekly and she had weekend visits with him (G10/74; G11/88). M’s mother VG has described the Applicant as “a crucial person in her life” and that the Applicant “has had constant interaction since birth” (G11/88). The Applicant stated that he has a “very close” relationship with M. He stated she would visit him in jail, draw him pictures and ask when he was coming home (A1). I accept that the Applicant and M have a close parental relationship.
There are approximately 12 years until M turns 18. This is a substantial amount of time during M’s formative years. M has a condition called congenital hypothyroidism due to being born without a thyroid gland. She is on daily medication which she will need to take for the rest of her life and requires monthly hospital visits and blood tests to monitor that her medication is correct (G11/88; G15/95-96). The Applicant was living in the community for two years prior to going to prison and was drug-free. During this time, VG stated that M needed “substantial doctor visits, growth checks and daily medication” and that the Applicant was “a supportive devoted father during this time”. She further described the Applicant as “successfully co-parenting” with her and “being fully engaged whenever he was needed” (G11/86). A letter from a case worker dated 6 May 2022 states that the Applicant is a client of the ReSet Parenting Support Program and that he was punctual and engaged (G27/112). At the hearing, the Applicant said that he did the course to try to learn how to be a positive influence in his children’s lives. He gave an example of communication skills he learnt to facilitate more in-depth conversations with M (transcript/27). I was also impressed that the Applicant wanted to work with VG to facilitate his ongoing relationship with M, and that he wanted to see M as much as possible but not disrupt her life (transcript/33-34). This evidence suggests that the Applicant is a loving father to his daughter, that he wants to be a good parent and that he is likely to play a positive parental role in the future (para 8.4(4)(b) of Direction No 99).
The Applicant’s conduct has not had an adverse effect on M, other than M not having her father present in her life. If the Applicant is released into the Australian community, resumes drug use, and reoffends, it is likely to have a negative impact on M who will face further instability and separation from her father (para 8.4(4)(c) of Direction No 99).
The Applicant speaks to M every day via FaceTime (transcript/30). He could maintain contact with M by telephone or FaceTime if he is removed from Australia, however these communications would be a poor substitute for M having her father physically present and involved in her life. VG stated that if the Applicant was removed from Australia, it would cause M “significant distress and trauma”, it would have a “traumatic effect” and would cause “irreparable damage” to M’s “emotional well-being” (A18).
The Applicant also wants to teach M about his Maori traditions and culture and submitted that he could not do this properly over the phone (transcript/32). M’s mother, VG, also stated that M “would lose an integral part of her Maori culture if her father is forced to leave”. She further stated, “He has been instrumental in teaching her about her heritage, language and traditions, fostering a deep connection to her roots” (A18). Although VG is likely to do her best to ensure M learns about her culture from the Applicant’s other Maori relatives in Australia, his evidence was that they did not live close by and that his aunt and cousins were from different tribes. I accept that the Applicant is likely to be the best person to teach M about her Maori culture. Although other relatives may be able to assist, they would not be available and able to educate M about her culture to the extent that the Applicant could.
I accept that physical separation from the Applicant will have a detrimental impact on M from both an emotional and cultural perspective (para 8.3(4)(d) of Direction No 99).
M is cared for by her mother, VG who provides good care for her. VG also has another three-year-old child from a subsequent relationship after the Applicant. However, given the demands of M’s medical condition, it is likely that the Applicant could assist with medical visits or other support to help care for M and manage her condition (para 8.4(4)(e) of Direction No 99).
VG has now separated from that partner. The Applicant has expressed security concerns that the former partner had been making threats against VG, had broken into her house (where M is also living) and was arrested recently after stalking VG. He said he believed that there was a current restraining order in place protecting VG and M (A2). In support, the Applicant filed an eCourts portal criminal listing for VG’s former partner which showed an upcoming court date for offences including property damage, possessing drug paraphernalia, and assaulting and obstructing public officers (A15). In short, the Applicant was concerned for the welfare of VG and M due to the former partner’s behaviour. If the Applicant is present in Australia, his presence may provide some sense of security for VG and M, and he may be able to assist them if they need help.
There are no known views of M, given her young age (para 8.4(4)(f) of Direction No 99).
I do not think that M is at risk of any family violence from the Applicant. There is no evidence that she has been abused or neglected by the Applicant in any way. Regarding whether M was exposed to family violence, the Applicant’s evidence was that there was no violence in the relationship after M was born because he was “getting to that stage where I was about to start rehabilitation” (transcript/80). When M was a baby, there was the incident when the Applicant went to VG’s house, picked up M and went into the spare bedroom with her and locked the door. Overall, the evidence suggests that the Applicant is a loving and caring father who is concerned for his daughter’s well-being and who would not hurt her (para 8.4(4)(g) of Direction No 99).
There is no evidence that M has experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
I have considered and weighed the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, including:
·The relationship is a close parental one.
·M is well cared for by her mother but has a serious medical condition whereby she would benefit from having two parents to care for her.
·There is a lengthy amount of time until M turns 18 and the Applicant is likely to be a positive role model during that time.
·VG’s evidence that the removal of the Applicant from Australia is likely to have a detrimental emotional impact on M.
·M will benefit from having her father physically present in her life to teach her about her Maori culture.
On balance, I find that the revocation of the Cancellation Decision is in the best interests of the Applicant’s daughter, M. I find that her interests weigh strongly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(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 the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia 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 position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)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.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by his criminal history, the Applicant has breached this expectation by not obeying Australian laws. This includes serious drug related offending and a road rage incident where a small child was present in the car (the Applicant’s 12 April 2019 conviction for the Aggravated Assault offence). Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f), including “acts of family violence” (8.5(2)(a)). The Applicant has admitted to family violence conduct against his former partner VG which falls within this category as raising serious character concerns.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to New Zealand as soon as is reasonably practicable and he will remain in immigration detention until he is removed.

Further, if he is removed to New Zealand, it is likely that the Applicant will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia (for a comprehensive overview with respect to Special Category (subclass 444) visas, see Senior Member Burford in Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666 at [167]-[169]).
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider 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 substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 44 years of age.
He has not identified any physical or mental health issues.
The Applicant has lived in Australia for the last 22 years, since he was 22 years old. There are unlikely to be any language or cultural barriers if he were to return to New Zealand, but it may be difficult for him to adjust to life in New Zealand after living in Australia for a lengthy amount of time. The Applicant has travelled back to New Zealand seven times since he started living in Australia and so it is not an unfamiliar country (G29/150-151).
He has extended family and friends in Australia, including his two adult children, his minor daughter, a sister and an aunt and cousins he is close to (G9/67). He may suffer some emotional detriment if he is returned to New Zealand because he will be separated from them.
The Applicant has family members living in New Zealand including his mother, five brothers, and a sister. He also has an extended family there including more than 20 aunts and uncles, and more than 20 nieces, nephews, and cousins (G9/67). His numerous family members in New Zealand may be able to offer him some social or emotional support if he is returned there.
He also has a 15-year-old minor daughter, MB, who lives in New Zealand with her mother SB, who is one of the Applicant’s former partners. He stated at the hearing that he had recently resumed contact with SB and MB and that he would try to resume contact with MB if he was returned to New Zealand.
The Applicant has a long history of drug use, with methamphetamine being particularly problematic. I have considered whether being returned to New Zealand may detrimentally impact on his rehabilitation. However, at the hearing the Applicant expressed an intention to continue with his rehabilitation, including his involvement with Man Up, which originated in New Zealand, and to continue being actively involved in his church. These factors are likely to be protective and would help the Applicant to reintegrate into the New Zealand community and not to relapse to drug use if he was returned there.
The Applicant will have access to the same social, medical, and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
He has also worked in New Zealand before he came to live in Australia. He undertook bar work, as well as teaching a variety of sports in schools. I acknowledge, however, that his status as a returnee with a criminal record may make it more difficult for him to find work and to support himself.
I find that there are minor impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to New Zealand, and that they are not insurmountable.
Consequently, I find that this consideration weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 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.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or any victims of the Applicant’s offences or conduct including VG and the victim of his Aggravated Assault offence.
Consequently, this other consideration should be given neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)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.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
·The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
·The family violence primary consideration weighed moderately against the revocation of the Cancellation Decision.
·The strength, nature, and duration of the Applicant’s ties to Australia weighed strongly in favour of the revocation of the Cancellation Decision.
·The best interests of M weighed strongly in favour of the revocation of the Cancellation Decision. There was insufficient information before me regarding ZM’s relationship with the Applicant to be able to assess ZM’s best interests. The Applicant has lost contact with DB and JOB and there was insufficient information to assess their best interests.
·The expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
·I gave neutral weight to the other consideration of the legal consequences of the decision.
·The extent of impediments if removed other consideration weighed slightly in favour of revocation of the Cancellation Decision.
·The other consideration regarding the impact on victims was also given neutral weight.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each of them above, is appropriate.
Although primary considerations are generally to be given greater weight, they are not hierarchical and other considerations can outweigh primary considerations (para 7(2) and (3) of Direction No 99).
In this application, the primary and other considerations for and against revocation of the Cancellation Decision are closely balanced.
Overall, I find that the primary considerations of the best interests of the Applicant’s six-year-old daughter, which weighed strongly, and the strength, nature, and duration of the Applicant’s ties to Australia, which weighed strongly, in favour of the revocation of the Cancellation Decision, were determinative. The extent of impediments if removed other consideration, which weighed slightly in favour, further added to the overall weight being in the Applicant’s favour. They outweighed the considerations that weighed against the revocation of the Cancellation Decision, namely the primary consideration of the protection of the Australian community (which weighed moderately to strongly), family violence (which weighed moderately) and the expectations of the Australian community (which weighed strongly), against the revocation of the Cancellation Decision.
In summary, I am satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 12 September 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 186 (one hundred and eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.............[Sgd].....................................................
Associate
Dated: 15 December 2023

Date of hearing: 22 and 23 November 2023

Representative for the Applicant: Self-represented

Representative for the Respondent:

Ms D Jones-Bolla, Sparke Helmore Lawyers

Date of hearing:	22 and 23 November 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers