Pihere and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 1508

Pihere and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1508 (5 June 2023)
Division:GENERAL DIVISION
File Number: 2023/1182
Re:Mahuta Tikirau Pihere
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:5 June 2023
Place:Melbourne

The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS MIGRATION – Visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – history of juvenile offending - violent offending – Applicant fails character test – mandatory visa cancellation – non-revocation decision – Ministerial Direction No. 99 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Bill 2023 (Cth)
Migration Regulations 1994 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Aliv Minister for Immigration and Border Protection [2018] FCA 650
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Hunt v Minister for Home Affairs [2021] FCA 507
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Pearson v Minister for Home Affairs [2022] FCAFC 203
Pihere and Minister for Immigration, Citizenship, and Multicultural Affairs [2021] AATA 4236
Pihere and Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FCA 1342
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516
Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433
SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50]
Department of Home Affairs, Direct pathway to Australian citizenship for New Zealand citizens from 1 July 2023 (Web Page, 22 April 2023)
Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
Jessica Kidd, OneFour rapper Pio ‘YP’ Misa and former member Dahcell Ramos jailed over western Sydney pub Brawl (Web Page, 5 December 2019)
‘Open Corporates’, SLAYER SCAFFOLDING PTY LTD (Web Page)
Ray Finkelstein and David Hamer (eds), Concise Australian Legal Dictionary (Lexis Nexis Butterworths, 5^th ed, 2015) 250
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
5 June 2023
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”). The hearing was held on 24 and 25 May 2023 by video at the Tribunal’s Melbourne Registry. The Applicant appeared from immigration detention in Sydney and was represented by Mr Joel McComber, a solicitor from Sentry Law. The Respondent was represented by Ms Hee-Jung Kim, a solicitor from the Australian Government Solicitor.
For the following reasons, the Tribunal affirms the reviewable decision.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”), read in conjunction with ss 501(6) and 501(7), obliges the Minister or their delegate[1] to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond.
[1] The Act, s 496.
Section 501CA(4) of the Act confers a discretionary power to revoke the original decision, if the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[2]
[2] Section 500(1)(ba) of the Act, read with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
BACKGROUND
The Applicant is a 21-year-old New Zealand citizen who first arrived in Australia with his family in October 2001.[3] He committed multiple offences as a juvenile, which include crimes involving violence, dishonesty, and breaches of conditional liberty.[4] It is not contested that between 2015 and 2020 the Applicant has committed more than 70 offences.[5]
[3] Exhibit R1, 186.
[4] Ibid 39.
[5] Ibid 38-50.
The Applicant’s most serious crime took place in November 2019 and consisted of unprovoked and premeditated violence, with co-offenders, against a man and his 14-year-old son.[6] The adult victim, who was trying to protect his son, sustained fractures of facial bones and was hospitalised. On 3 March 2020, the Applicant was convicted in the Sunshine Magistrates’ Court of: intentionally causing injury; affray; unlawful assault; ten counts of theft from shop; nine counts of committing an indictable offence while on bail; two counts of contravening a conduct condition of bail; and criminal damage. He received an aggregate sentence of 15 months’ imprisonment and a $1500 fine. The following then occurred:
[6] Exhibit R1, 48.
(a)On 7 May 2020, in consequence of his offending, a delegate of the Minister mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act (“cancellation decision”).[7] The Applicant acknowledged receipt of this on the same day;[8]
[7] Ibid 194-200.
[8] Ibid 65.
(b)The Applicant’s sentence was reduced on appeal by Judge Marich of the County Court of Victoria. Her Honour instead imposed an aggregate sentence of 11 months’ imprisonment, a Community Corrections Order (“CCO”), and 50 hours of unpaid community work.[9] This meant the Applicant no longer had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(1)(c) of the Act. The Respondent subsequently relied on ss 501(6)(c)(i) and 501(6)(d)(i) of the Act as the basis on which the Applicant failed the character test; either because of his past criminal conduct, or the risk that he would engage in further criminal conduct if allowed to remain in Australia;
(c)The Applicant made written representations in 2020 and 2021 seeking revocation of the cancellation decision;[10]
(d)On 27 July 2021, a delegate of the Minister declined to revoke the cancellation decision (“non-revocation decision”);[11]
(e)On 4 August 2021, the Applicant asked the Tribunal to review the non-revocation decision;
(f)On 20 October 2021, the Tribunal, differently constituted, affirmed the non-revocation decision.[12] The Applicant appealed this in the Federal Court;
(g)On 11 November 2022, Justice Colvin quashed the Tribunal’s decision and remitted the matter for determination according to law;[13]
(h)The matter was differently constituted within the Tribunal. At a case management hearing convened on 6 January 2023, to issue scheduling orders, the Tribunal was advised that the Applicant was released in late December 2022 after the Full Court’s decision in Pearson.[14] The matter was then dismissed by the Tribunal as non-reviewable under 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth);
(i)On 17 February 2023, Applicant was re-notified of visa cancellation after Parliament passed the Migration Amendment (Aggregate Sentences) Bill 2023 (Cth) (“Amending Act”), which validated with retrospective effect the 7 May 2020 decision to cancel his visa;[15]
(j)On 26 February 2023, the Applicant asked the Tribunal to review the cancellation decision within the permissible period under s 5 of the Amending Act; and
(k)On 19 March 2023 the Applicant was re-taken into immigration detention where he has since remained.
[9] Ibid 510-514.
[10] Ibid 76-177.
[11] Ibid 22.
[12] Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4236.
[13] Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1342 (Colvin J).
[14] Pearson v Minister for Home Affairs [2022] FCAFC 203, (Allsop CJ, Rangiah and Derrington JJ).
[15] Exhibit R1, 516-518.
ISSUE
It is not contested that the Applicant fails the character test,[16] and the Tribunal so finds. The issue to be determined is whether the discretion to revoke the visa cancellation is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[17] The Tribunal must make ‘the correct or preferable decision’,[18] based on the material currently before it.[19] The Full Court in Bettencourt reflected with approval upon the approach taken in Viane, about how ‘another reason’ is determined. [20] Their Honours summarised the following principles:[21]
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[16] Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”) dated 2 May 2023, 1 [2]; Respondent’s Statement of Facts, Issues, and Contentions (“RSFIC”) dated 16 May 2023, 5 [14]-[15].
[17] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[18] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.
[19] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68].
[20] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
[21] Ibid at [27].
More recently, in Plaintiff M1/2021, the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be addressed: [22]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[22] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 99
In making its decision, the Tribunal must comply with a ministerial direction that commenced on 3 March 2023 and is known as ‘Ministerial Direction 99’ (“the Direction”).[23] The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measurable 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 risk of causing physical harm to the Australian community.
[23] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.

Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[24]
[24] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[25]
[25] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
EVIDENCE
The following materials were taken into evidence:
(a)Remittal bundle lodged by the Respondent numbering 530 pages;[26]
(b)Applicant’s four-page statement dated 22 May 2023;[27]
(c)Two-page statement of the Applicant’s father dated 22 May 2023, accompanied by medical records comprising a discharge summary from Westmead Hospital dated October 2022, and a Patient Health Summary printed on 21 May 2023;[28]
(d)Three-page statement of the Applicant’s mother dated 19 May 2023;[29] and
(e)County Court of Victoria order dated 9 March 2023, cancelling the Applicant’s CCO.[30]
[26] Exhibit R1.
[27] Exhibit A1.
[28] Exhibit A2.
[29] Exhibit A3.
[30] Exhibit A4.
Applicant’s evidence
The Applicant adopted his statement as true and correct. The Tribunal has also considered his other documentary evidence.[31] The Applicant claimed during oral evidence that some of the information contained on page 87 of his Personal Circumstances Form (“PCF”) was written by him, but other sections were written by another person. It was put to him that the handwriting on this and other pages of his PCF were identical and written by the same person, which he disagreed with. In the absence of expert evidence, the Tribunal does not accept this claim. Other evidence from the Applicant’s mother and father, regarding how many siblings and nieces / nephews the Applicant has, conflicts with his PCF and other documentary submissions. This is later discussed.
[31] Exhibit R1, 56-57; 65-71; 76-90; 150-163.
Life and relationships in Australia
The Applicant said he came to Australia at about a month of age and, apart from some return visits to New Zealand, has lived here all his life. He claims to have attended school until Year 9.[32] The Applicant said he left his parent’s home in 2017 when he was 16 years old and relocated to Melbourne where he ‘snuck in’ to live with his girlfriend. He explained that she was then a minor who lived in government-funded accommodation under the care of Victoria’s Department of Health and Human Services (“DHHS”).
[32] Ibid 88.
The Applicant said he did not have stable accommodation in Melbourne and DHHS staff objected to him seeing and staying with his girlfriend. He often ‘couch-surfed’ with friends and provided for his needs by ‘stealing and getting up to no good’. He on-sold stolen items to others. When put by Ms Kim that stealing was an insufficient way to provide for himself, the Applicant responded: ‘It depends on what I stole’ and laughed. He claimed that he never asked his family members for help and did his ‘own thing’, although his parent’s evidence is that they intermittently sent him small amounts of money up to $50 when he requested it. The Applicant said he kept in contact with his family in Sydney by calling or texting his mother ‘every couple of weeks’. The Applicant agreed he did not work or undertake any education while living in Melbourne.
The Applicant said his parents drove from Sydney to Melbourne several times to visit him while he was imprisoned or detained, however visits were not possible during COVID-19 restrictions. When he was released from detention in December 2022 for an approximately three-month period, the Applicant said his father drove from Sydney to collect him. After being retaken into immigration detention in March 2023, he continued to maintain contact with his parents ‘nearly every day’ by telephone. The Applicant said his parents counselled him during these calls to work if released and not return ‘to old habits’. The Applicant said he has telephone discussions with his brother, during which they ‘try to be silly and laugh’. His brother similarly tells him to ‘pull [his] head in because if [he gets] in trouble again, they won’t give [him] another chance’. The Applicant did not lodge a statement from his brother or call him as a witness. When asked why, the Applicant said he did not ask him.
Apart from his parents and brother, the Applicant said he has multiple aunts, uncles, and cousins living in Australia. He made no reference to other siblings, which conflicts with the evidence of his mother, which is later discussed. The Applicant said that prior to being imprisoned, he saw extended family members in Melbourne ‘nearly every Friday or Saturday’, and since then speaks with them every now and then by telephone. He recalled letting some of them know he was detained and said they were ‘buzzing out’ at the prospect he might be deported. Apart from his parent’s statements, however, the Applicant did not lodge any statements from other relatives. The Applicant claimed his parents and other family did not know about his offending after he left home. He never asked to stay with extended family members in Melbourne and they never offered. The Applicant said he regrets not listening to family advice to get a job and settle down, and that his past conduct was ‘pretty stupid’.
The Applicant said his elder brother, who lives with his parents, was previously in a relationship that broke down. His brother has a biological child from that relationship who is now seven years of age. The Applicant does not know his nephew’s birthday. The Applicant said neither he nor his brother had seen the child since approximately 2016, and he had not spoken with the child on the telephone from the time he arrived in Melbourne. When asked what he and the child discussed at that time, the Applicant responded: ‘I was just trying to make him laugh and telling him I love him and that’. When asked why his brother could not see the child, the Applicant said his ex-partner and her parents ‘don’t want him to see his son’. When asked why, the Applicant responded: ‘He’s having issues or something. It’s got nothing to do with me’. When asked if he had any aspirations for a future relationship with his nephew, the Applicant said he aspired to be the ‘best uncle’.
The Applicant is not currently in a relationship and said there is no prospect of resuming the relationship with his former girlfriend. When asked who else apart from his parents he kept in touch with, the Applicant responded: ‘a couple of mates…I don’t know many people in Sydney – just a few mates. I met them from my brother…they’re like family friends now. I met them maybe in 2017’. The Applicant said one of these friends is an accountant and the other works at a golf club. No statements were lodged from these friends, and they were not called as witnesses. The Applicant also referred to a close friend in Melbourne, with whom he occasionally stayed. He claimed this person was not involved in his offending but had been in trouble with the police ‘maybe only twice’. The Applicant claimed to be unaware why and did not lodge a statement from this friend nor call him as a witness.
Offending
The Applicant accepted the accuracy of his criminal history.[33] He agreed that his offending commenced at the age of 13 and included crimes like burglary, attempted robbery, theft, and contravening bail. The Applicant said some of these offences were committed in company with ‘mates from school’, while others he committed alone. He claimed to no longer be in contact with co-offenders.
[33] Ibid 38-39.
The Applicant said he spent about a week in juvenile detention after his 2015 offending. When asked by Ms Kim how he found this experience, the Applicant responded: ‘Juvie is nothing special. I shouldn’t have been in juvie but in school…Someone of my age should have been in school instead of doing offences, but I was only young.’ The Applicant agreed he was living with his parents when committing these offences. When asked what the relationship with his parents was like, the Applicant responded: ‘Good…but sometimes my parents would tell me off by saying you should know better’. When asked how he responded to this, he said that he ‘walked away’ and did his ‘own thing after that’.
During cross-examination, the Applicant was asked about an accident while driving his mother’s car in 2018. He did not have a licence, agreed that he drove while intoxicated, and failed to provide details to the other driver. He also agreed that he failed to stop and drove his mother’s car home. When asked if he was still intoxicated, the Applicant replied: ‘Nah – I fell asleep for I don’t know how long and then I woke up’. The Tribunal inferred that he drove somewhere after the accident, slept for a period, and then drove home. The Applicant said police subsequently came to his home to question him about the accident.
In relation to breaches of Family Violence Intervention Orders (“FVIO”), the Applicant said DHHS staff at his girlfriend’s ‘resi care’ objected to him sneaking in to see her: ‘Her workers didn’t want me around her – they thought I was a bad influence…always getting arrested’. The Applicant claimed he and his girlfriend ‘never really fought’ and the imperative for the FVIO was solely ‘because they didn’t want [him] near her’. The Applicant claimed he was unaware of the FVIO until police pulled him over on an unrelated matter and informed him. He agreed that he contravened the FVIO on five occasions,[34] but claimed it was his girlfriend who initiated contact because she ‘didn’t care about the [FVIO]’. When put to the Applicant that he could have refused to see his girlfriend, he responded: ‘I didn’t say no – I’m not going to control her life.’
[34] Ibid 39.
The Applicant initially claimed he and his girlfriend engaged in ‘play fights – like a laugh and that’ but he ‘never touched her.’ Later in his evidence, however, he said they smacked each other on the head ‘because [they] were frustrated’. He said it was ‘not a smack as in a smack’. When asked to explain, the Applicant responded: ‘I don’t know how to explain it’. The Applicant recalled he and his girlfriend breaking up. When asked why, he responded: ‘It’s a long story’. When asked to elaborate, he stated: ‘It just didn’t feel the same.’
The Applicant agreed that despite appearing before the Children’s Court after his 2015 offending, he was not deterred from reoffending. It did cross his mind that he might be returned to juvenile detention again but he claimed his ‘head wasn’t switched on’ at that time. The Applicant accepted that some of his offending pre-dated the breakup with his girlfriend and the death of an older brother after an illness.
When asked about his most recent crimes, including unprovoked violence against a father and son in public, the Applicant claimed he was intoxicated and not ‘in the right state of mind’. When asked how he felt about this offending now, the Applicant said he regretted what he did and realised after being ‘locked up and detained’ that what he had done in the past was ‘pretty dumb’. He stated: ‘As soon as I went to big boys’ jail…I [realised] I don’t want to be one of those people who goes to jail for life’.
When asked if his older brother, who lives with his parents, has a criminal history, the Applicant denied this. This evidence was later contradicted by his parents.
Alcohol and drugs
The Applicant was referred to sentencing remarks dated 3 March 2020, in which the Magistrate referred to ‘substance abuse issues in the home when he was growing up [and] exposure from an early age to alcohol and physical abuse’.[35] The Applicant claimed he had not seen the sentencing remarks before, denied any physical abuse at home, but agreed he drank alcohol from the age of 14 or 15. He said that his alcohol consumption became much heavier after his brother passed away,[36] which he claimed was in 2018. In later evidence, however, the Applicant’s father stated the Applicant’s brother died in ‘November 2019’. The Applicant said he sourced alcohol by stealing it or asking ‘random strangers’ to buy it for him, which he then drank with friends at the ‘skate park or footy oval’. He estimated that he drank a ‘box [24 cans or bottles of pre-mixed spirits] nearly every day’ until arrest in 2019. When asked why he did not return to his parent’s home in Sydney after his brother’s death, the Applicant replied: ‘I was in a five-year relationship with my ex-missus. We had a big argument after we broke up, it just done my head in’.
[35] Ibid 46 [13].
[36] Exhibit A1, 2 [10].
The Applicant said he stopped drinking after his arrest, remained abstinent while in custodial settings, and did not drink alcohol at all during the three-months he lived with his parents from December 2022. The following exchange occurred between Ms Kim and the Applicant:
Ms Kim: “Do you drink now?”
Applicant: “No”
Ms Kim: “Nothing, not at all?
Applicant: *Pauses*
Ms Kim: “Mr Pihere you don’t drink anything now?”
Applicant: “No”
Ms Kim: “Not even on special occasions?”
Applicant: “Mmm nah, cos that’s how I ended up in jail, from drinking and yeah I don’t want to be drinking or anything anymore”
Ms Kim: “When did you stop drinking altogether?”
Applicant: “When I got arrested”
Ms Kim: “So when you got arrested you stopped drinking?”
Applicant: “Yeah”
Ms Kim: “None at all?”
Applicant: “No”
This Applicant said his parents continued to drink alcohol during the three-months he lived with them in early 2023, including to celebrate his release. He claimed that he did not participate: ‘I told my parents drinking is not good for me and made me end up in jail. I said if I get out, I’m not going to drink again’. This evidence was later contradicted by the Applicant’s parents and is further discussed in their summary of evidence.
The Applicant said he first took illicit drugs (cannabis) at the age of 11 or 12, which was given to him by a friend in Melbourne. He claims that he does not currently take drugs, stopped doing so after being arrested, and does not get cravings. The only thing he currently smokes is cigarettes. When asked by Mr McComber how he stayed out of trouble during the three months he lived with his parents, the Applicant responded: ‘By trying not to interact with police and getting back on my feet with work’.
Recidivism risk
When asked about custodial records referring to him being a ‘high risk detainee’ and a high risk of reoffending, the Applicant rejected this stating: ‘No I don’t feel like I’m a high-risk person. There’s more bad people than me in the World’. He thought that his recidivism risk:
‘…should be lower…I feel like I’m not a risk to the community, to anyone, like I’ve grown up, I’ve grown up from the past charges I’ve done and yeah I don’t want to go back to jail or whatever or get out or whatever and just go back to work’.
The Applicant initially denied he was involved in incidents of misconduct or disciplinary proceedings in custody. Ms Kim asked him about an incident report soon after he entered immigration detention, where two litres of home brew was discovered in his cell.[37] The Applicant claimed his cell mate produced this and he had told this person: ‘Do whatever you want – just make sure you don’t get caught with it’. When asked why the incident report stated he claimed ownership of the home brew, the Applicant denied this and claimed detention staff fabricated the information in some reports. When asked if he had not been consistently compliant in custody, the Applicant responded:
‘Yes…but like, it’s not what they’re trying to make out that I’m the baddest person on this earth or whatever, I may tell them to go away but not likely rudely if you get what I mean’.
[37] Exhibit R1, 183.
The Applicant agreed that the contents of one incident report referring to him removing food from the mess was accurate but claimed this was allowed. When challenged why an incident report would be raised for permissible behaviour, the Applicant responded:
‘I dunno, but I’m 100% that everyone takes food back…it’s allowed but like some of the officers don’t like you doing it. They don’t allow it because of food poisoning if you leave it in the fridge and that for too long’.
The Applicant denied failing to comply with custodial clothing rules.[38] When asked about an incident relating to ‘Kings$’ stickers being placed on property and resulting in him being dismissed from work, the Applicant said he was unfairly blamed and sacked because the stickers were already there, and he was not responsible. When asked if he referred to an officer as a ‘fucking dog’ as noted in one report,[39] the following exchange occurred:
Applicant: “I don’t even remember re-calling that, I don’t even remember that incident”
Tribunal: “Are you saying that it didn’t happen or you have no recollection?”
Applicant: “Nah, I might have been there but I dunno, I dunno why they’re putting me in someone else’s problem even though I was there. That’s what I mean, they’re writing stuff down that, that I haven’t done and that I have done”
Tribunal: “Have you ever called an officer a fucking dog?”
Applicant: “Nah, I’m always nice to all the officers”
[38] Ibid 276.
[39] Ibid 184
The Applicant was asked about materials suggesting he was associated with a street gang called OneFour.[40] The Applicant denied this, stating: ‘I wasn’t part of it, I just listened to their music…I’m just a fan’. The Applicant agreed that pages in evidence from a social media account were from his profile, and that he was in some of the pictures where identities are concealed with hats, hoods, and face coverings.[41] When asked why, the Applicant responded: ‘Cause we wanted to take a picture like that’. He said the other people in these pictures were his ‘mates’. When asked why those pictured were displaying hand signals, the Applicant initially stated: ‘I don’t know why they throw up hand signals’. He later explained, however, the meaning of the hand signal he displayed as indicative of the area he previously lived in. When asked whether one of the people pictured was holding what appeared to be a knife, the Applicant said it was not a knife but ‘thick timber’.
[40] Ibid 178-181.
[41] Including on page 181.
Rehabilitation and protective factors
The Applicant said he completed an alcohol and drugs (“AOD”) course in prison in ‘mid 2020’, which is the only rehabilitative course he has undertaken. He did not participate in Alcoholics Anonymous meetings as intended in his PCF,[42] including after being released from detention in December 2022. The Applicant said his priority was to find work and he felt that he had ‘already solved’ his alcohol problem. When asked about conditions that might be imposed on him under a CCO if released, the Applicant said CCO conditions were never explained to him, and he was unaware they might include treatment for AOD abuse and mental health assessment. The Applicant said the CCO was ‘dropped’ by the Court and, at the Tribunal’s request, subsequently provided an extract from the County Court of Victoria dated 9 March 2023, which confirmed the CCO was cancelled around the time he was re-taken into immigration detention in March 2023.[43] The Tribunal accepts the Applicant no longer remains under any CCO obligation if released.
[42] Ibid 87.
[43] Exhibit A4.
When asked by Ms Kim if he recalled any of the workshops and activities undertaken during his AOD course, the Applicant replied: ‘Not really – I forgot – it’s been a while’. When pressed, the Applicant said the instructor told him that drinking alcohol was ‘no good for [his] kidneys and health…[because]…drugs cause serious damage to your brain cells’. When further pressed about how he might avoid drinking alcohol in social settings, the Applicant responded: ‘You just gotta umm…I don’t have to walk away if someone offers me, I just say no’. The Applicant’s evidence was that he would rely on self-control to avoid relapse into alcohol abuse. When asked by Ms Kim if he felt the need to attend additional rehabilitative courses of programs, the Applicant responded: ‘Yeah and no…I already know myself I don’t want to do this anymore…’ When asked if he needed professional help to succeed, the Applicant replied: ‘not really’, again explaining that since arrest he had matured and was now more responsible for his actions.

When asked by Ms Kim if he considers himself an angry person, the Applicant responded: ‘Not really…but if somebody said something about my family or whatever, but right now I am trying not to get angry and get in the right mind space’. When asked how he would react if he got angry, the Applicant responded: ‘It depends on who says what…I’d try to hold myself back if I can, to cause nothing to happen or whatnot’.
The Applicant said after being released from immigration detention in December 2022, his father drove to Melbourne to collect him. He lived with his parents in Sydney and found casual work as a scaffolder. He did not get into any trouble with police during these three months. The Applicant said he personally searched online for the scaffolding job and did not previously know the person who employed him. He agreed that this employer does not know about his criminal history.
The Applicant said he does not have a licence, so when asked to do a shift, his father drove him to and from work each day. When asked by Mr McComber why he didn’t just choose to drive illegally as he had done in the past, the Applicant responded: ‘I didn’t want to get myself into trouble or look bad for the court (sic) hearing’. The Applicant claimed that he received a $300 flat rate daily payment into his bank account from the scaffolding job, irrespective of hours worked. He claimed that he did not receive pay slips and does not know if any superannuation contributions were made.
Health
The Applicant stated he has no health concerns and does not currently take any medication.
Plans if allowed to remain in Australia
If allowed to remain in Australia, the Applicant said he intends to live with his parents and resume work with the same scaffolding company that employed him earlier this year. He referred to completing construction induction training and a business planning course while imprisoned.[44] The Applicant did not provide a statement from the scaffolding employer to corroborate how long he worked for the company, or the job offer he now relies upon. When asked why, the Applicant said he did not ask. Given the relevance of the Applicant’s work claim upon release, the Tribunal expressed an intention to call the employer, which was not objected to by the parties. Mr McComber made enquiries and advised the Tribunal on 25 May 2023 that the employer was prepared to give oral evidence if contacted between 10:00 and 11:00 am. The Tribunal called the number provided several times during the appointed time, but these went unanswered. After making further enquiries, the Tribunal recalled the Applicant to determine if a social networking profile was of the person who employed him. The Applicant confirmed it was and said that Slayer Scaffolding Pty Ltd employed him. The Applicant was shown records disclosing that this company is being wound up with a liquidator now appointed.[45] He claimed to have no knowledge of this given he was re-taken into immigration detention in March 2023 and had no contact with the company since.
[44] Exhibit A1, 2 [13].
[45] ‘Open Corporates’, (Web Page) <>
The Applicant said if allowed to remain in Australia his plans include assisting his parents and, in time, saving enough for an overseas holiday and to buy his own home. He referred to his father’s medical issues, stating that his ‘heart is not in the best condition’ and requires ‘a lot of medication’.
Plans if returned to New Zealand
The Applicant said there is ‘no one in New Zealand’ he can rely upon for support. He had only returned there when younger for family events like funerals. He recalled the last occasion was when he, his mother, and elder brother returned in 2015 for the funeral of his mother’s sister. They stayed at his ‘mum’s sister’s family’ for about a week. He could not recall details of earlier visits or who he stayed with. The Applicant said he has no interaction with any family members or friends in New Zealand.
When asked what his parents would do if he was returned to New Zealand, the Applicant stated: ‘They’d probably have to come back’. When asked if he also expected his older brother to return to New Zealand, the Applicant responded: ‘Most likely’. This was later contradicted by his parents and is discussed in their summaries of evidence.
Evidence of the Applicant’s father
The Applicant’s father adopted his statement as true and correct. He lives in Sydney with his wife and one of his sons. The witness said his eldest son is employed and has a criminal history, which he believes relates to dishonesty offending. His wife undertakes casual work around two or three days a week. The witness is currently unable to continue working as a truck driver because of his health issues. They rely on his wife’s / son’s income.
When asked by Mr McComber about his health, the witness said he has heart issues that are not amenable to a stent or bypass surgery, and for which he takes a ‘cocktail of tablets’. The witness said his wife visited him in hospital during his five-day admission after she finished work, because he called to ‘let her know he was alright’. The witness said his current impairments include not being able to walk for very long. Medical records show that he was admitted to hospital on 1 October 2022 after presenting with chest pain. He was discharged on 5 October 2022 after tests were conducted, with a medical management plan that included medications and a recommendation that he ‘follow up with a Vascular surgeon as an outpatient for yearly check ups for monitoring’.[46]
[46] Exhibit A2.
The witness said the Applicant moved with the family to Sydney in 2016, but subsequently returned to Melbourne. When asked to describe his relationship with the Applicant at this time, the witness said he was ‘all over the place, made up his own mind, [and] had an attitude problem’. He thought the Applicant would reach out to other family members in Melbourne, but this was not the case. When asked how often he communicated with the Applicant, the witness responded: ‘Once or twice before he got arrested’. When asked what they talked about, the witness said: ‘Nothing much – just what he’s up to, but who knows whether he was telling the truth or not’. The witness claimed neither he nor his Melbourne-based relatives were aware of the Applicant’s offending. On occasions the witness ‘sent money to someone’ in Melbourne to give to the Applicant, explaining it was only $50 or so. When asked if he got relatives in Melbourne to check up on the Applicant, the witness responded: ‘No’. When asked by Ms Kim if he worried about the Applicant during this time, the witness said he did not because the Applicant was ‘street wise’. He explained the Applicant had ‘done a lot of living on the streets’, had met a ‘few people’ that he ‘hung out with’ and they ‘looked out for each other’. He said: ‘there were times [the Applicant] would come home, but then disappear again’.
When asked about the Applicant’s release from immigration detention for three months earlier this year, the witness said he drove to Melbourne to pick him up and said this was like a ‘late Christmas present’. The witness noticed positive changes in the Applicant: ‘Before he was nothing but trouble and disrespected his mother’, but his attitude after release from detention was more respectful and he talked ‘properly’. The witness attributed this improvement to the influence of other prisoners who took the Applicant ‘under their wing and taught him lessons’, enabling him to ‘mature a lot’. He had since thanked some of these prisoners for mentoring the Applicant.
The witness said the Applicant found casual work as a scaffolder in early 2023, but did not disclose his criminal history:
‘…because of his record he couldn’t tell anyone where he had been and that, so to get employment you know he had to umm falsify some things, just so he could get work, which he did...’
The witness said he drove the Applicant to work whenever a shift was offered, which was ‘only a couple of days a week’. Because of the nature of scaffolding work, this could be anywhere in Sydney.
When asked about the nephew whose interests the Applicant invokes, the witness said they last saw the child when he and his wife travelled to Melbourne in June 2022. He claimed this was one of 17 grandchildren he and his wife have. This is inconsistent with the Applicant’s documentary claims about having only ten nieces and nephews.[47] The witness said the Applicant’s nephew lives with his mother and they must seek her permission for visits. When asked why, the witness responded: ‘I don’t know. The woman thinks she has power over the man when they have the child’. The witness was unaware of any court or legal proceeding governing when his eldest son could see the child.
[47] Exhibit R1, 86.
If the Applicant was allowed to remain in Australia, the witness said he would provide whatever support is necessary. When asked how he could help ensure the Applicant would not reoffend, the witness said this was ‘something you really can’t ensure’, but has faith in the Applicant’s ability to build on positive changes since imprisonment. When asked about the Applicant’s past heavy dependence on alcohol, the witness said he and the Applicant drank alcohol ‘only a couple of times’ following his release in December 2022, ‘but not a lot’. He believes the Applicant now has his alcohol consumption ‘under control’. The following exchange occurred between the witness and Ms Kim:
Ms Kim: “When he returned home earlier this year, were there times when you were all drinking socially together?”
Witness: “A couple of times, yep”.
Ms Kim: “And your son drank?”
Witness: “Yeah a couple of times, yeah, but he stopped when we stopped and when we were all ready to go to bed, he went to bed”.
Ms Kim: “How many drinks would you say he was consuming?”
Witness: “Oh, I dunno, I didn’t count, you know, but we drank for a couple of hours in the evening and then while we were watching the rugby league, the NRL”.
Ms Kim: “Okay, so he also participated in the casual drink you were all…?”.
Witness: “Yes”
If the Applicant is removed from Australia, the witness believes his heart could ‘play up’. He said the family is unable to support the Applicant in New Zealand. Contrary to the Applicant’s claim about his parents accompanying him to New Zealand, the witness said they ‘can’t go back home’ because their lives are now established in Australia. The witness is concerned the Applicant could not return to Australia ‘to see him off’ if he dies from his heart condition. His whole family lives in Australia and he claimed there is no one the Applicant can rely on in New Zealand, which means he would be ‘living on the streets’.
Evidence of the Applicant’s mother
The Applicant’s mother adopted her statement as true and correct. The Tribunal has also considered her other documentary evidence, including a statement dated 21 February 2021.[48] She lives in Sydney with her husband and eldest son in a private rental. Her eldest son has a criminal history, which she believes relates to dishonesty offending.
[48] Exhibit R1, 169-171.
The witness works casually for two or three days each week. Her eldest son also works, earns $1000+ per week, and gives her money for shopping and utilities. She had another son who died after an illness in 2019. He had seven children but was separated from his partner. The witness does not see the children much anymore. The witness said she has two other children (daughters), one who is in her 40s and the other under 40, who live in Melbourne, have partners, and six children between them. This information was not previously in evidence. Aspects of the witness’s claims about these adult daughters, the number of grandchildren she has, and her relationship with them was somewhat inconsistent and opaque.
The witness said that prior to leaving home at 16, the Applicant was ‘angry’, ‘never respected’ her, and went against her wishes. She said their relationship was ‘ugly…very rough…wasn’t like a proper mother/son thing’, and the Applicant was ‘very abusive’ towards her. The witness said it was often not possible to have a conversation with him because he ‘woke up angry’ and ‘was always moody and grumpy’. She thought the Applicant went ‘downhill’ after one of his elder brothers died.
The witness said she tried to dissuade the Applicant from leaving home at such a young age, but ‘nothing was stopping him to do as he pleased’. When asked if she was worried about him living alone in Melbourne, she responded:
‘He was street smart…No one was going to hurt him, and he wasn’t going to starve. He knew how to protect himself and look after himself… He managed to find people to stay and do things with, but I guess…he hooked up with the wrong people’.
The witness said the Applicant called her periodically and asked for money. They gave him around $50 and, apart from that, he ‘got on with his life’ and did not tell them what he was up to. She knew he was not employed. When asked by Ms Kim if she probed the Applicant for information, the witness said she did, but he was always ‘smiling, laughing and that’s what mattered to us’. She said none of their Melbourne relatives ‘used to keep track of him [except] – maybe an auntie or an uncle’. The witness said she knew about the Applicant’s juvenile offending while he was living at home but was unaware that he was ‘being naughty and stuff’ in Melbourne, until receiving a call to say he’d been ‘locked up’. When asked if she worried he would continue to get in trouble in Melbourne, the witness said she had ‘faith’ the Applicant would ‘be alright and do the right thing’, but this did not occur.
During the Applicant’s release from immigration detention between 27 December 2022 and 19 March 2023, the witness said it felt like she was ‘given a new child’. She recalled the Applicant mowing the lawn, whereas previously he would just walk past his father mowing the lawn. He also went to work ‘for a couple of days a week’, respected her more, and had ‘changed for the better’. She no longer ‘saw anger in him’ and this is the ‘new son’ she wants in the future.
If the Applicant can stay in Australia, the witness wants him to work and help look after his father when she is not there. She said there is no one to support him in New Zealand and ‘he’ll probably end up on the street and back in jail again’. She said her life is in Australia and if she and her husband return to New Zealand they would likely end up on ‘struggle street’. When put to the witness that she could not watch the Applicant constantly to help him stay law-abiding, she agreed, responding: ‘I’m not gonna hover over him to see if he’s doing the right thing. I have strong faith – 100% - that he’ll do the right thing’. When put to her that faith alone was insufficient in the past, she said the Applicant’s conduct earlier this year showed what he is capable of.
When asked about the Applicant’s past heavy dependence on alcohol and whether he used alcohol while lived at home earlier this year, the following exchange occurred:
Witness: “…when he drinks with me and his father, it’s sociable drinking and there’s no drinking until you’re passed out. It’s like you have a few drinks and when it’s time to go to bed you go to bed. I guess his drinking with his friends in the past was totally different to how we socialise drinking”
Ms Kim: “What would you say those occasions would be if you drank at home?”
Witness: “Oh, I dunno, just a dinner and a few bottles of beer, just catching up, reminiscing”
Ms Kim: “And how many drinks would you say? 2/3 beers?”
Witness: Yep, 2 to 3 beers, that’s more than enough. Like we’re not big drinkers here, it’s just sociable”
Ms Kim: “And how many times a week would that be?”
Witness: “Oh gosh, you’d be lucky if it was every week, maybe every fortnight? Not every week or every day, no”
Ms Kim: “So in a very controlled environment?”
Witness: “Yep”
When asked if she worried about the Applicant starting to drink heavily again, the witness said she would like him to work more, which would make him feel tired and drink less. She reiterated that the sort of drinking he engaged in during his recent time at home was ‘more a once-a-week thing – sociable drinking’. The witness thought the Applicant would benefit from AOD counselling if released and she had recommended this to him. She agreed that no one had yet explored this counselling.
When asked about the Applicant’s seven-year-old nephew, the witness said she and her husband last saw the child for a ‘couple of hours’ during a family weekend trip to Melbourne in 2022. The only way they can see the child is with the mother’s permission. She said the Applicant had met his nephew once in 2018 ‘before being locked up’ and had not seen him since. When asked what the Applicant’s relationship with the child was like during that meeting, she responded: ‘cuddles and hugs – that’s about it’.
Apprenticeship offer
The Tribunal notes a letter in evidence relating to an apprenticeship offer received by the Applicant two years ago.[49] There is no recent evidence to suggest this remains open and no indication that the company representative is aware of the Applicant’s offending. When asked about this offer during the hearing, the Applicant said his father sourced the apprenticeship offer from his then employer. Mr McComber confirmed during the hearing that no reliance was placed on the apprenticeship offer and the Applicant’s intention was to seek re-employment with the scaffolding company he worked for in early 2023.
PRIMARY CONSIDERATIONS
[49] Ibid 175.
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(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.
(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.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A 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 reoffended 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 following is stated in the ASFIC regarding the nature and seriousness of the Applicant’s past offending:[50]
[50] ASFIC 6-7 [22]-[26].
‘It is accepted that our client has plead guilty to 79 criminal offences. Of those offences:
(a) 34 related to property offences (including 21 charges for theft);
(b) 24 related to compliance-related offences (e.g., commit indictable offence while on bail, fail to answer bail);
(c) eight related to the operation of a motor vehicle;
(d) six involved acts of physical violence;
(e) five involved contravening a family violence intervention order;
(f) one involved resisting an emergency worker;
(g) one related to the possession of cannabis.
It is accepted that our client’s history of offending is very serious extremely serious and involves offences including:
(a) serious, unprovoked violence;
(b) contraventions of family violence orders; and
(c) resisting an emergency worker in the course of their duties.
In relation to our client’s conviction for resisting an emergency worker, we respectfully submit that resistance involves objectively less serious conduct than assaulting an emergency worker (or other government employee or representative) and should therefore be weighed less heavily than conduct involving actual physical violence for the purposes of paragraph 8.1.1(b)(ii).’
The Tribunal places no weight on the Applicant’s criminal history as a juvenile where convictions were not recorded notwithstanding the Court’s findings of guilt.[51] The totality of the Applicant’s past behaviour, however, is a relevant consideration in the context of ‘other conduct to date’.[52]
[51] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10, [36].
[52] The Direction, cl 8.1.1(1); LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571, [14]-[15].
Mr McComber submitted that the Applicant accepts the seriousness of his past crimes, particularly his most recent violence, which was unprovoked and against strangers. Sentencing remarks disclose that the Applicant and several co-offenders attacked a man and his 14-year-old son who were getting off a bus, because they ‘were bored and decided to target the victims’. The Magistrate observed this was a premeditated and ‘serious offence’, describing it as follows:[53]
‘The most serious of the charges, however, that you have pleaded guilty to are intentionally causing injury and affray…That particular incident involved yourself and your co-accused attacking a father and a son who alighted from a bus. The father was trying to protect his 14-year-old son. You and the co-accused then essentially attacked the father in a situation that has resulted in him having injuries which were two fractures…of his cheek bones and he was hospitalised as a result of that incident. It was an unprovoked attack. You had no prior relationship with the victims in this matter in any way.
You also pleaded guilty to an affray because there was a second part to what happened and that second part involved an attack on two other members of the public. I accept that your role in that was limited, that you were part of the initial group that was part of that affray but you did not actually physically hit or hurt any of the victims of that affray.’
[53] Exhibit R1, 48.
For someone so young, the Applicant has offended frequently, and his crimes have increased in seriousness. The sentence of imprisonment he received on 3 March 2020 is his first. This was reduced on appeal and is below the available statutory maximum.[54] That said, any sentence of imprisonment is the most severe sanction available to the courts.[55] The frequency and cumulative effect of the Applicant’s crimes has imposed adverse consequences on his victims and the broader community. This includes because of the investigative, judicial, and other costs incurred.
[54] Crimes Act 1958 (Vic), ss 18, 195H(1)(a).
[55] See for example: Sentencing Advisory Council, “Imprisonment,” <
The Tribunal has considered reports about the Applicant’s custodial behaviour. Although there are positive references, some reports refer to him engaging in misconduct and non-compliance.[56] The Applicant accepts he was dismissed from one work role and has not been consistently compliant, but cavils with the details of, or denies other reports. This includes the claim that he did not declare ownership of two litres of home brew following a room search in detention.[57]
[56] Exhibit R1, 183-185.
[57] Ibid 183.
In terms of the weight given to custodial records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their probative value is often tested during questioning, as was the case here. The Tribunal is not bound by the rules of evidence but witnesses must be afforded procedural fairness.[58] As Kenny J has pointed out, the Tribunal should treat records of this kind carefully and acknowledge the ‘limits to the material before it that was said to evidence such conduct, including its cogency and reliability’.[59] Absent a prosecution and conviction, unless a witness agrees that records not leading to criminal charges or convictions are accurate, they must be treated with caution.[60]
[58] AAT Act, s 33(1)(c).
[59] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[60] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
The Tribunal does not accept the Applicant’s uncorroborated assertion that information adverse to him in incident reports was fabricated by custodial officers. Aspects of his evidence show he is a vague or inconsistent historian, which includes the false claim that he abstained from alcohol since arrest. The incident reports regarding misconduct and non-compliance are not isolated and were submitted by different authors on different days between November 2020 and April 2021. The Tribunal does not discern any apparent motive for the authors to have recorded other than what they saw or was conveyed to them by the Applicant. This is reinforced by the Applicant’s acceptance that he has not been consistently compliant in custody. The Tribunal considers these contemporaneous records more persuasive than the Applicant’s uncorroborated claims.
A newspaper article dated 5 March 2020, refers to the Applicant’s purported membership of a Sydney street gang.[61] The following submission is made in the ASFIC about this:[62]
‘To the extent that that Decision Maker considers that our client’s Facebook posts referencing the music group OneFour amounts to serious conduct, we submit that such a conclusion or finding would be misguided in circumstances where OneFour is a music group and our client’s Facebook activities give no indication that he is anything more than a fan of that music group. We submit that it would be extremely dangerous, and offensive to the principles of liberal democracy on which our society and system of government is founded, to rely on our client’s musical tastes as a matter weighing against revocation.’
[61] Exhibit R1, 178.
[62] Exhibit R1, 158 [35].
The Respondent tendered extracts from the Applicant’s social media profile, containing several photographs of individuals with identifying features concealed, making hand signals. The Applicant’s evidence about this was earlier summarised. He initially claimed not to know why hand signals were being displayed, but later explained the meaning of the hand signal he displayed. There are references in this material to ‘Onefour’ and a post in the Applicant’s name using a racially offensive term. The Tribunal notes from open-source material that Onefour is an Australian rap group originating in Western Sydney, which is linked in media articles to criminal and gang culture. The Applicant agreed that some band members have been jailed for violent offending.[63]
[63] Jessica Kidd, OneFour rapper Pio ‘YP’ Misa and former member Dahcell Ramos jailed over western Sydney pub Brawl (Web Page, 5 December 2019) <>
Notwithstanding the way the Applicant presents himself on social media, or his musical preferences, or association with those who prefer to conceal their identities in photographs, the available evidence does not persuasively establish his membership of a gang, which he denies.[64] No weight is placed on any purported gang association.
[64] Ibid 150 [7].
The Tribunal finds the Applicant’s offending and other conduct is serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, 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).
The harm that would be caused by a repeat of the Applicant’s offending is significant. If he was to again strike a person to the head with sufficient force to break facial bones, then death or serious physical or psychological injury could result. Any further assaults in company could also result in devastating consequences. If he was to again drive while intoxicated, death or serious injury could result to other road users or pedestrians. A repeat of his persistent dishonesty offences could cause further financial loss or psychological consequences. More broadly, a continuation of his frequent past offending could result in additional financial costs being borne by the community in terms of police, court, and corrections resources.
The Applicant said the primary causative factors of his offending were ‘heavy drug and alcohol use’,[65] which spiralled ‘out of control’ after the death of an older sibling in 2018. It is noteworthy, however, that the Applicant’s father stated several times the Applicant’s brother died in November 2019, which post-dates most of the Applicant’s offending.
[65] Ibid 87 [10].
In terms of recidivism risk, the following is stated in the ASFIC:[66]
‘It is submitted that our client’s risk of reoffending is low. This submission is made on the following bases:
(a) our client’s past criminal offending occurred when he was very young, between the ages of 13 and 18, and he has matured significantly since that time;
(b) our client’s experience of imprisonment from November 2019 to November 2020 had the intended deterrent effect on our client;
(c) in the course of his imprisonment, our client completed a drug and alcohol rehabilitation course which significantly improved his insight into his problem drug and alcohol use and provided him with the tools to stop his problem alcohol use in the future;
(d) our client is now aware of the consequences of further criminal offending on his Australian migration status, and the permanent exclusion that any future visa cancellation under s 501 would cause;
(e) our client intends to return to living with his parents in Sydney and find employment in Sydney.
As against our client’s low risk of reoffending, it is submitted that the magnitude of harm that might result from any future reoffending is not so great as to mean that the cancellation decision should not be revoked regardless of our client’s low risk of reoffending. It is noted that further offending by our client might result in physical and mental harm to others and loss of property.’
[66] ASFIC 7-8 [27]-[30].
In closing submissions, Mr McComber accepted that this primary consideration weighed against the Applicant but said the past conduct did not rise to a level of seriousness ‘that would completely limit a revocation decision’. Mr McComber highlighted the Applicant’s three-month period of release in early 2023 as reflecting ‘real and substantial change’. This included because the Applicant found casual work and displayed a more respectful attitude to his mother. Mr McComber said that despite the scaffolding company who employed the Applicant going into liquidation, there were ‘plenty of unskilled labour positions’ the Applicant could apply for if released. The following exchange occurred regarding the Applicant’s disclosure of his criminal history to employers:
Mr McComber:
“My understanding of the father’s evidence was that the Applicant disclosed his criminal history in some applications prior to the one he obtained”.

Tribunal:
“And he didn’t get work?”

Mr McComber: “And didn’t get work. It’s unclear to me whether or not the process positively required that he disclose that or if he volunteered that first of all”.
Tribunal: “I understand the father’s evidence was that he hid that…and I want to make sure I’ve got the right characterisation?”.
Mr McComber: “So my understanding of the father’s evidence was that in the Applications he made that were unsuccessful, he did disclose his criminal history and he did not obtain those jobs. What is unclear from the father’s evidence is whether that was voluntary in the sense that he made an unprovoked disclosure to those prospective employers of his criminal history or whether that was a question of whether he was asked to disclose that criminal history in the course of his application. But the second aspect of that is in respect of the job he did get, it is also not clear to me whether or not the prospective employer positively asked that he disclose his criminal history”.
Tribunal: Didn’t his father say the Applicant ‘had to falsify to get work’?
Mr McComber: “In the follow up to that question, when you circled back to that in re-examination, my understanding of the evidence that the Applicant’s father gave then was not that he made positive false representations but that he didn’t disclose his criminal history to the employer that ultimately employed him, is what I recall of the father’s evidence”.
The Court has referred to the past inability of ‘Youth Justice…to engage with [the Applicant] in terms of…supports…or supervision that they provided on the deferrals and bails’.[67] The Court noted the Applicant had some family support, but referred to it as ‘dysfunctional’’.[68] This included because his substance abuse developed in the home through ‘exposure from an early age to alcohol and physical abuse’.[69] In his oral evidence the Applicant denied any physical abuse. The Court also noted references by Youth Justice authorities to the Applicant’s ‘lack of emotional maturity’, contextualised by periods of homelessness and ‘not having proper role models in place’. His counsel in the March 2020 sentencing hearing submitted that the Applicant did not provide ‘full and frank instructions’ regarding priors.[70]
[67] Exhibit R1, 43 [18].
[68] Ibid 45 [23].
[69] Ibid 46 [13].
[70] Ibid 45 [15].
In terms of rehabilitation, the Court stated the following during sentencing:
‘I note that Youth Justice say that they are unable to come to a conclusion about your prospects for rehabilitation but given your young age I am going to proceed on the basis that there has to be some guarded prospects that I need to take into account.’[71]
[71] Ibid 49 [26].
The Applicant undertook a 15-day AOD course while imprisoned,[72] but says he was unable to do a 44-hour AOD program because of ‘corona virus’.[73] He expressed an intention in his PCF to attend Alcoholic Anonymous (“AA”) meetings when they resumed in custody, but in his oral evidence confirmed he had not done so. He also did not explore AA opportunities after being released from detention in December 2022.
[72] Ibid 151-152 [13]-[14]; 158 [33]; 230 [23.(c)].
[73] Ibid 87; 245 [33.2.6].
In terms of the Applicant’s attitude to educational opportunities, a record dated 25 August 2020 from the Loddon Prison Case Management Review Committee states:
‘Mahuta was encouraged to do education but he has not bothered to enrol in any classes since he has been in Loddon…
***Treatment Programs*** Is not partaking in any treatment programs…
***Personal Development*** Mahuta has no motivation to any programs or to get a job…
***Behavioural Report*** Mahuta has no motivation to anything besides playing cards. He has had a GMDH for home brew – pleaded guilty and received an $80 fine. He is seen by staff in the unit playing cards with the other prisoners and mucking around. Staff keep an eye on him. The panel discussed future planning and making constructive use of his time left to serve’.[74]
[74] Ibid 301-302.
The Applicant’s reflections on lessons from his AOD course lacked detail and reflected a superficial understanding about problems arising from past alcohol abuse. This cast doubt on the extent of his insight. Other aspects of his evidence were inconsistent, came across as immature, blame shifting, or were less than forthright. For example:
(a)The Applicant’s abstinence claims during a three-month period of release from December 2022 and claim that his elder brother did not have a criminal record, were directly contradicted by his parent’s evidence. When his father gave this evidence, the Tribunal observed the Applicant stick his fingers in his ears as if not wanting to listen to what was being said, which came across as a display of immaturity.
(b)The Applicant’s reliance on the death of an older brother as contextually relevant to his crimes is inconsistent with the fact that much of his offending pre-dates this. Even if the death of his brother was chronologically proximate to his most recent violent offending, which has not been established, this does not explain his conduct. Many people experience the death of a loved one without engaging in serious and unprovoked violence against strangers, one of whom was a minor.
(c)The Applicant’s attempt to attribute responsibility to his ex-girlfriend, who was then a minor under state care, for initiating contact while an FVIO was in place, was unpersuasive. The Applicant and not his girlfriend was required to comply with the FVIO. His claims came across as blame-shifting and an unwillingness to fully accept responsibility for his conduct. His claim that he didn’t refuse her approaches because he was ‘not going to control her life’, raises concerns about his insight, respect for Australia’s law-enforcement, and his maturity.
(d)The Applicant claims he told a cellmate who manufactured home brew to ‘do whatever you want – just make sure you don’t get caught with it’, similarly detracts from his claim that he has matured and is more respectful of Australia’s laws.
(e)The Applicant’s claim that custodial staff fabricated incident reports, is an uncorroborated, scandalous assertion. He nevertheless conceded that he has not been consistently compliant in custodial settings, which again gives rise to concerns about the extent to which he fully accepts responsibility for past conduct.
(f)When put to the Applicant that stealing seemed an inadequate way to provide for his daily needs, he responded: It depends on what I stole’ and laughed. His references to juvenile detention being ‘nothing special’ and to ‘big boys’ jail, came across as misplaced bravado. These sorts of comments cut across his claims about maturity and developed insight.

One of the Applicant’s older brothers has passed away and is buried in Australia. It is noteworthy that in the testimony of the Applicant’s mother, she referred to the Applicant having two older sisters in Melbourne. The only previous reference in the evidence, however, is to the Applicant having one older brother, who lives with their parents, as his ‘sole living sibling’.[92] The Tribunal found the Applicant’s mother’s evidence in this regard to be somewhat opaque and inconsistent. On the scant evidence currently before the Tribunal little if any weight can be attributed to the interests of these purported siblings.
[92] Ibid 160 [46.(b)]; 232 [34.(b)]; 234 [42].
The Tribunal has considered supportive statements from the Applicant’s parents. This includes the claim that because of the Applicant’s father’s health, they have changed their mind and will no longer accompany the Applicant to New Zealand. The Applicant seemed unaware of this during his oral evidence, when stating that he expects his parents and brother will return to New Zealand and live with him if he is removed. It is noteworthy that the Applicant’s parents have been able to address their own needs since the Applicant left home at 16. Their oral evidence is that they do not receive any Government payments and the income from the Applicant’s mother’s and brother’s employment provides for their needs. Moreover, they have provided him with intermittent financial support, in small amounts of $50 or so, when he asked for it. There is no evidence the Applicant’s parents rely on him for financial support, although his father said they would welcome his financial contribution to the family if he did find work.
The Applicant claimed he has made positive contributions in Australia through participating in sport[93] and ‘church service for the elderly eg gardening mowing lawns cleaning house’.[94] There is no independent corroboration of this beyond a photograph of the Applicant in an under-8s rugby club photograph and another photograph of the Applicant in what appears to be a rugby jersey at an unidentified age. There is scant evidence of Applicant making any positive contribution to the Australian community.
[93] Ibid 172.
[94] Ibid 89.
The Respondent submitted that:
‘Although a decision not to revoke the cancellation would have emotional and other impacts on the applicant’s immediate family, the evidence is far from the clear that the applicant’s mother and father would return to New Zealand if the applicant is removed from Australia. In her statutory declaration of 21 February 2021, the applicant’s mother states that she and her husband ‘would’ go to New Zealand to support the applicant, but admits they ‘haven’t discussed it in depth’ (RB 170 [16]). She then mentions her job…and says that [m]ost of my family and all of his [her husband’s] family is [sic] in Australia’, before stating that ‘[m]oving to New Zealand would completely destroy any opportunity I would have to have a relationship with my only (at this stage) grandchild’ (RB 170 [16]-[17]). The applicant has not (in these remitted proceedings) provided additional evidence to bolster his claim that his parents would join him in New Zealand.
33. As for the strength, nature, and duration of the applicant’s ties more generally, the respondent submits that these ties should be given limited weight (paragraph 8.3(4) of Direction 99), noting the applicant’s significant criminal offending since the age of 13. Apart from the applicant’s childhood, there is a limited (3-month) window in late December 2022 to mid-March 2023 in which the applicant did not commit criminal offences: ASoFIC [28](e).
34. On balance, the respondent submits that primary consideration 3 should only be given moderate weight in favour of revocation.’
The Tribunal accepts that a non-revocation decision would cause distress and emotional hardship to the Applicant’s parents, and perhaps his brother and other members of his family and friendship groups. That said, the Applicant’s relationship with his parents and brother has largely been conducted from a distance since he was 16. Any relationship he has with relatives in Melbourne does not appear particularly close on current facts. There is also no evidence that his parents, sibling, and other relatives could not visit him if they wished or provide him with intermittent financial support as they have done in the past.
There is no evidence that an adverse decision in this matter impacts the Applicant’s nephew given the lack of a current meaningful relationship between them. In the absence of any evidence from the other nieces and nephews his father referred to, the Tribunal similarly does not accept that there is a close relationship between them and the Applicant, and that the effect on them would be other than perhaps sadness.
Collier J has reasoned that this primary consideration is:[95]
‘Clearly intertwined with the issue of permanency of exclusion from Australia. Indeed I consider it likely that the stronger a visa-holder’s ties to Australia, the greater the consequence of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled’.
[95] Hunt v Minister for Home Affairs [2021] FCA 507, [53] (CollierJ).
The Tribunal is somewhat surprised that for someone who has lived in Australia for most of his life, there is a paucity of material in support of the Applicant. The ‘close tight family’ network he claims, ‘that always supports each other’, is not readily apparent when regard is had to his protracted homelessness and reliance on crimes to support himself. It is not possible to place much weight on positive contributions by the Applicant to the community, because the evidence largely discloses a persistent history of criminal and anti-social behaviour. That said, considerable weight is placed on the duration of the Applicant’s residence here, including during his formative years. Notwithstanding the Tribunal’s concerns about the strength and nature of the Applicant’s ties to Australia, what ties he has are mostly here. Although his closest relationships have been conducted from a distance since the age of 16, the evidence of the Applicant’s parents is that they aspire to change this, which would not be possible if he was returned to New Zealand, and they remain here. On balance, this primary consideration weighs substantially in favour of revocation.
Best interests of minor children in Australia
Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.4(4) to 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 no biological children and made no claim in his PCF regarding the interests of minor children. Written submissions from his lawyer, however, state:[96]
‘Our client has a young nephew…who lives in Australia. [Child’s name redacted] is the son of our client’s only remaining brother…We submit that the interest of [this child] would best be served if he were allowed the opportunity to develop a relationship with our client, especially in circumstances where his only other uncle…past (sic) away prior to his birth.
In the circumstances, we submit this considerations weighs somewhat in favour of revocation.’
[96] ASFIC, 11 [47]; Exhibit R1, 159 [41]; 231 [31].
At the last Tribunal hearing, the Applicant stated he had no contact with this nephew and only met him once.[97] This evidence was repeated at the current hearing. The Applicant’s relationship with this child is clearly non-parental. The child’s contact with his father (the Applicant’s brother) and parents is similarly infrequent, because of what appears to be a fractious relationship with the child’s mother and her family. What evidence there is points to long periods of absence and limited meaningful contact between the child, the Applicant, and the Applicant’s family. The Applicant’s evidence is that he aspires to play a more prominent avuncular role if released. There is no evidence from the child or the child’s caregivers, however, that they would welcome this. That said, as the child gets older, he may seek a closer relationship with the Applicant, which is admittedly speculative, but would be made more difficult if the Applicant was returned to New Zealand.
[97] Reasons at [90].
On balance and on the most beneficial reading of the available evidence, revocation is in the best interests of the Applicant’s nephew. That said, this primary consideration only weighs very slightly in favour of revocation.
Expectations of the Australian community
Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(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.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(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…;
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[98] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[99] The High Court refused an application for special leave to appeal from the orders in FYBR.[100]
[98] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
[99] Ibid at 473 [75]–[76] (Charlesworth J).
[100]FYBR v Minister for Home Affairs [2020] HCA Trans 56.
Mr McComber submitted that given the length of time the Applicant has spent in Australia and the strength of his ties, the weight to be placed on this primary consideration ‘is not significant or determinative’. Ms Kim submitted that this primary consideration weighs heavily in favour of non-revocation when regard is had to the principles in the Direction.
The Applicant’s history of offending, including a violent and unprovoked attack against a minor child in public, raises character concerns within the meaning of cl 8.5(2)(c) of the Direction. The totality of his conduct is such that the Australian community would expect, as a norm, that the Government would not allow him to remain in Australia. The Applicant has persistently breached the community’s expectation that non-citizens will obey Australian laws and he should therefore expect to forfeit the privilege of remaining here.[101] This is so regardless of the higher tolerance extended to him by virtue of his long residence in Australia or the other positive factors he invokes in support of his application. This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
[101] Clauses 5.2(1)-(2) of the Direction.
Legal consequences of the decision
The Applicant did not raise any non-refoulement obligations and none is disclosed by the evidence. Clause 9.1 of the Direction is not enlivened and carries neutral weight. Mr McComber did raise the Applicant’s likely permanent exclusion from Australia in the event of a non-revocation decision, which is later discussed as a separate consideration.
Extent of impediments if removed
Clause 9.2 (1) of the Direction 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 almost 22 years old. There are no language or cultural barriers disclosed by the evidence. In terms of health, the Applicant marked the ‘Yes’ box on his PCF when responding to the question ‘Do you have any diagnosed medical or psychological conditions?’. Nothing was included, however, in the spaces provided below. In his oral evidence the Applicant said he had no health concerns and took no medications. He aspires to an immediate return to work if released and the Tribunal did not discern any medical reason why he could not do so.
The Applicant’s concerns about a return to New Zealand centre on being able to re-establish himself and provide for his needs, without the practical or emotional support of his parents. Consistent with his parent’s evidence at the last hearing, he stated that he expected them and his brother to join him in New Zealand if he was returned. His parents made clear, however, they no longer intend to return to New Zealand. There is no evidence from the Applicant’s brother about his intentions. It is submitted on the Applicant’s behalf that:
‘In circumstances where our client:
(a) has lived in Australia since he was one month old;
(b) has never lived any meaningful period of his life in New Zealand, or anywhere other than Australia;
(c) has never held any meaningful employment;
(d) is still only 19 years old,
we submit that there would be significant impediments to our client establishing and maintaining basic living standards in New Zealand.
In the above circumstances, we submit that this consideration weighs heavily in favour of revocation.’[102]
[102] ASFIC 13 [55].
The Respondent submits that limited weight should be placed on this consideration because the Applicant is a healthy young man of working age, who holds a white card, has completed a business course, and has demonstrated a recent ability to secure work as a scaffolder.
The Tribunal accepts that after living in Australia for most of his life, the Applicant would be confronted by a difficult period of transition in New Zealand. This includes because of his past crimes, a significant period in custodial settings, and lack of previous employment except for recent casual work as a scaffolder. The Tribunal notes this work was obtained either by the Applicant falsifying his criminal history or not disclosing it.
The Tribunal does not accept that the Applicant is too ‘young and cannot survive alone’ if returned to New Zealand.[103] Whether or not his parents or brother decide to accompany him to New Zealand is not determinative of his ability to establish himself or find work. He left home at the age of 16 and has lived independently in another state since. His parents both refer to him as ‘street smart’ and able to look after himself. The white card qualification and business planning course he completed in custody can only have enhanced his employability – irrespective of whether he lives in Australia or New Zealand. There is also no evidence that if he required it, the Applicant would not have the same access to support available to other New Zealanders who meet relevant prerequisites. This includes support available to returning citizens after a period of imprisonment in another country.[104]
[103] Exhibit R1, 86.
[104] Returning Offenders (Management and Information) Act 2015 (NZ).
This consideration weighs moderately at best in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
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 evidence from victims or their family members within the meaning of this consideration. It is therefore not enlivened and carries neutral weight.
Impact on Australian business interests
Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration therefore carries neutral weight.
Additional considerations
Mr McComber submitted that a non-revocation decision and removal of the Applicant to New Zealand would permanently exclude him from Australia. He contends that this prospect is ‘not a feature attracting weight of itself’ but needs to be considered as ‘part of the factual and legal matrix’ informing the Tribunal’s exercise of the revocation power. The prospect of permanent exclusion as advanced as follows:[105]
[105] ASFIC, 7 [28.(d.)]; 12 [52]; Exhibit R1, 156; 158 [33.(d.)]; 230 [23(d.)]; 527.
Preliminary Issue – Permanent exclusion resulting from non-revocation
24. In the Applicant’s submission, the Decision Maker should approach the application of the considerations prescribed by Ministerial Direction 90 on the understanding that a non-revocation decision will have the effect of permanently excluding the Applicant from Australia. This is because, if the mandatory cancellation of his visa is not revoked:
(a) the Applicant will not be eligible to apply for any visa while she (sic) remains in Australia, except for:
(i) a protection visa; or
(ii) a Bridging R visa,
neither of which the Applicant is eligible to be granted;
(b) the Applicant will never be able to satisfy Special Return Criteria 5001,18 a criteria of all visas for which the Applicant could apply outside of Australia;19 and
(c) the Applicant’s history of criminal offending permanently renders her a behaviour concern non-citizen for the purposes of s 32(2)(a) of the Act, which prescribe the criteria for the grant of a subclass 444 visa.
25. The Applicant submits that the Decision Maker is obliged to be cognizant of permanency of the consequences of their decision because, as was recognised by Allsop CJ in Hands v Minister for Immigration and Border Protection20 at 630 [3]:
(Errors in original. Footnotes omitted.)

Mr McComber submitted that although it might be ‘theoretically possible’ for the Applicant to be granted a visa to remain in Australia after a non-revocation decision, once removed he could never satisfy the requisite visa conditions for return. This submission essentially asks the Tribunal to consider a potential consequence of a consequence; namely an inability to successfully apply for a return visa to Australia in the future, because of the consequence of non-revocation and removal. To do so requires speculation about a future visa application yet to be made, which would be considered by a different decision-maker, and perhaps under a different statutory scheme. As Jessup J observed in Tanielu:[106]
‘By contrast, the consequence upon which the applicant relies in the present case would be a practical reality only if he sought to return to Australia from New Zealand, the country of his nationality…The “consequences” to which he does refer would, therefore, become relevant when he, as a national of New Zealand residing there some time in the future, decided to apply again for a visa to enter Australia. To the extent that this might be regarded as a “consequence” of the Minister’s decision, it does not have the legal proximity or the practical immediacy to that decision to justify the conclusion that, as a matter of law, the decision could not have been validly made without a consideration of it.’
[106] Tanielu v Minister for Immigration and Border Protection [ (2014) 226 FCR 154 (at [27]).
The Applicant’s criminal offending resulted in visa cancellation, rendering him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[107] Non-refoulement claims are not currently advanced and, providing the Applicant did not subsequently apply for a Protection Visa, he would be on a pathway to removal as soon as reasonably practicable.[108] There is no evidence removal is not reasonably practicable, although how long that takes will turn on irresoluble branches and sequels of future events. This includes the potential for the Applicant to lodge another visa application, or appeal an adverse decision, or request ministerial discretion,[109] or seek voluntary removal.
[107] The Act, s 196.
[108] The Act, s 198(2B).
[109] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
The Tribunal accepts that removal of the Applicant means it is unlikely he would be permitted to travel to Australia in the near term unless some sort of ministerial discretion is exercised. This means his parents or other relatives would have to travel to New Zealand or a third country to visit him. If he were to apply for a visa to return to Australia in the future, his application would be considered by another decision-maker, likely Ministerial, under the statutory scheme then prevailing. As Justice Jagot J has pointed out: ‘…relevant circumstances may change, Ministers may change and Ministers may change their minds’.[110] The April 2023 announcement of a direct pathway to Australian citizenship for New Zealand citizens in Australia, is but one example of the changing statutory landscape in Australian citizenship and migration law.[111]
[110] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, [42].
[111] Department of Home Affairs, Direct pathway to Australian citizenship for New Zealand citizens from 1 July 2023 (Web Page, 22 April 2023) <>
Having identified some of the possibilities and uncertainties that might follow a non-revocation decision, the Tribunal is not required to engage in speculation or fact-finding about the unknown course of future events.[112] As held in Ali:[113]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...’
[112] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[113] Ali v Minister for Immigration and Border Protection [2018] FCA 650.
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:[114]
‘… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...’
[114] [2018] FCA 1523.
The Tribunal accepts that after living in Australia since he was an infant, a non-revocation decision would be very difficult for the Applicant and his family, resulting in adverse human consequences.[115] This includes emotional hardship for the reasons discussed under Strength, nature, and duration of ties, to which substantial weight has already been attributed in favour of revocation. As the Applicant’s father pointed out in his evidence, one human concern is that if he dies from his heart condition, the Applicant may not be able to return to Australia and ‘see him off’. On current facts it is difficult to foresee the basis on which a future visa application from the Applicant might be approved, with concomitant adverse impact on his closest relationships in Australia. This would be difficult and emotionally wrenching. That said, and without speculating on the course of future events, there may be some provision for Ministerial discretion on compassionate grounds, including under Schedule 5 to the Migration Regulations 1994 (Cth) and s 32(2) of the Act.
[115] See, for example, Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225, [3] (Allsop CJ) (Markovic J and Steward J agreeing).
The unavoidable fact, however, is that any future exclusion from Australia, results from the Applicant’s persistent criminal conduct, which enlivened adverse outcomes under the Act. This is a consequence of principles like cl 5.2(2) of the Direction, which provides that ‘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’. It follows that the Tribunal declines to afford weight in favour of revocation on the prospect that the Applicant may (or perhaps will) be subjected to permanent exclusion if removed.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. On these facts, the Tribunal does not consider it necessary to depart from the guidance that greater weight ‘should generally be given’ to the primary considerations.
The Applicant has committed over 70 offences during a five-year period between 2015 and 2020. This includes a violent, unprovoked, and premeditated attack against strangers, one of whom was a child. The totality of his offending and other conduct is serious. His rehabilitative prospects on these facts are guarded, particularly in circumstances where he was not truthful about abstaining from alcohol during a recent three-month period living in the community with his parents. The Tribunal is also concerned about incidents of misconduct and non-compliance in custodial settings, which cast doubt on the Applicant’s claims about maturity, insight, and rehabilitative progress. He has unmet rehabilitative needs and no persuasive plan to address them. His recidivism risk is unacceptably high.
The Applicant’s recent violent conviction raises character concerns within the meaning of cl 8.5(2)(c) of the Direction. When his past conduct is considered against the applicable principles in the Direction, the Australian community would expect, as a norm, that the Government would not allow him to remain in Australia. This is so regardless of the higher tolerance extended to him by virtue of his long residence in Australia since a young age, or the other positive factors he invokes in support of his application.
The Tribunal is unpersuaded that the Applicant yet fully appreciates the consequences of, or fully accepts responsibility for, his past family violence conduct. That said, there is a paucity of evidence on which to reliably determine its seriousness.
The Tribunal accepts that the Applicant has lived in Australia for almost all his life. Notwithstanding concerns about the strength and nature of his ties, it is accepted that what ties he has are predominantly here. That said, his closest relationships have been conducted from a distance since the age of 16. His parents aspire to change this, which would not be possible if he was returned to New Zealand.
The Applicant’s relationship with his nephew is non-parental and they have only met once years ago. The evidence reflects long periods of absence and limited meaningful contact between themy. The Applicant’s aspires to play a more prominent avuncular role if released, although there is no evidence from the child’s caregivers that this would be welcomed. That said, as the child gets older, he may seek a closer relationship with the Applicant, which is admittedly speculative, but would be made more difficult if the Applicant was removed.
The Applicant is young, healthy, and there are no language or cultural barriers disclosed by the evidence. His concerns about returning to New Zealand centre on being able to re-establish himself and provide for his needs, without the practical or emotional support from his parents in Australia. The Tribunal accepts his parents no longer intend to return to New Zealand, which is a change from the previous hearing. In any event, this is not determinative of the Applicant’s ability to establish himself or find work. That is because he left home at the age of 16 and has lived independently in another state since. His parents refer to him as ‘street smart’ and capable of looking after himself. The Applicant has demonstrated his resilience in living an independent life since a young age. Moreover, there is no evidence that if he required it, the Applicant would not have access to the same support available to other New Zealanders who meet relevant prerequisites. This includes support available to citizens returning after a period in custody overseas.
The Tribunal accepts that after living in Australia for most of his life, the Applicant would be confronted by a difficult period of transition if removed, including because of his past crimes and a lengthy period in custodial settings. Despite the Tribunal’s concerns about whether the Applicant disclosed his criminal past to the person who employed him as a scaffolder earlier this year, he has demonstrated a recent ability to apply for and secure employment, despite not having previously worked in Australia. The white card qualification and business planning course he completed in custody can only have enhanced his employability – irrespective of whether he lives in Australia or New Zealand.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because three of the five primary considerations – namely, Protection of the Australian community; Family violence committed by the non-citizen; and Expectations of the Australian community – considerably outweigh the weight given to the primary considerations Best interests of minor children and Strength, nature and duration of ties to Australia, and the other countervailing consideration.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 5 June 2023

Date of hearing: 24 and 25 May 2023

Advocate for the Applicant: Mr Joel McComber

Solicitors for the Applicant Sentry Law

Advocate for the Respondent: Ms Hee-Jung Kim

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	24 and 25 May 2023
Advocate for the Applicant:	Mr Joel McComber
Solicitors for the Applicant	Sentry Law
Advocate for the Respondent:	Ms Hee-Jung Kim
Solicitors for the Respondent:	Australian Government Solicitor