Puohotaua and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2620
•16 July 2024
Puohotaua and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2620 (16 July 2024)
Division:GENERAL DIVISION
File Number: 2024/2817
Re:Tea Anaru Puohotaua
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of Decision: 16 July 2024
Date of Reasons: 24 July 2024
Place:Brisbane
On 16 July 2024, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirmed the decision made by the Respondent's delegate dated 6 May 2024.
............................[SGD]...............................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Temporary) (Class TY) (subclass 444) visa- where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – serious violent offending including family violence – drug trafficking – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
24 July 2024
I delivered my decision and brief reasons ex tempore at the conclusion of the hearing of this matter on 16 July 2024. I now provide my settled reasons in writing. As I foreshadowed when I delivered my reasons orally, these written reasons include some legal analysis and content from the applicable Ministerial Direction that I did not articulate at the time.
The Applicant is a 25-year-old citizen of New Zealand who was born in 1998 and who moved permanently to Australia in 2012 to live with his father. His visa was recently cancelled because he did not pass the character test and he was serving a full-time custodial sentence.
The cancellation of his visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In August 2023, the Applicant was sentenced to multiple periods of imprisonment for 12 months of more. While he was serving that sentence, on 1 September 20243, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa. The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include an invitation to make representations to the Minister about revocation of that decision.[1]
[1] 501CA(3)(b)
A mandatory visa cancellation can be revoked under s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Respondent decided not to revoke the cancellation. That decision was reviewable by the Tribunal pursuant to s 500(1)(BA) of the Act. The Applicant lodged an application in this Tribunal for review of that decision.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[2]
[2] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 15 and 16 July 2024 and the Applicant did not have legal representation. He, his father and a family friend gave evidence. The Tribunal also received the written evidence that is listed in the exhibit list marked “Annexure A”.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
A decision whether to revoke a mandatory cancellation must be made in accordance with Ministerial Direction No 110 (“the Direction”).
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·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.
·The safety of the Australian Community is the highest priority of the Australian Government.
·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.
·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.
·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.
·The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Direction requires me to take into account the Primary and Other Considerations. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
The five Primary Considerations are:
(1)the protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The four Other Considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
When I apply Primary Consideration 1, I have to keep in mind the government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. I have to consider the nature and seriousness of the Applicant’s conduct to date.
It is relevant to note that the Applicant grew up in a broken home where there was high conflict between his parents. There was physical violence going both ways, and multiple break-ups and attempted reconciliations when the Applicant was around three to seven years old. The Applicant lived with his mother who was, according to her own sister, physically, psychologically and emotionally abusive to the Applicant and his two brothers. When the Applicant was around 14, he moved to Australia to live with his father. His father was strict, but he was not abusive. He provided a safe, stable home and encouraged the Applicant to do well at school and football.
The Applicant started smoking marijuana with a couple of his friends when he was 15 or 16 years old. He started mixing with these people after breaking up with his girlfriend. He turned to them whenever he was going through a hard time.
On 15 July 2015, a Domestic Violence Order was made against the Applicant, for the protection of his girlfriend. Among other things, it prohibited him from entering or attempting to enter where she lived. It was to remain in force for two years. On 17 May 2016, he contravened that order by going to her home. He got into an argument with her and yelled. She pushed him out the front door and in the course of resisting, he pushed his shoulder into the leadlight glass panel in the front door, smashing the glass out of the panel. He was not affected by drugs at this time.
From around 2017, the Applicant used ecstasy and cocaine recreationally and his use increased in mid‑2017. He committed two offences of public nuisance/disorderly behaviour in September 2017, for which he was fined. In 2019, he was caught in possession of a dangerous drug.
In 2019, the Applicant was in a relationship with a lady, “Ms D”. During a trip back to New Zealand, there was a domestic violence incident. The Applicant was arrested and made to do an anger management course. The relationship broke up, but when he returned to Australia, it resumed. The Applicant became insecure and jealous, and his aggression increased. Ms D ended up reporting him to the police and ending the relationship. No action was taken at the time, but a few months later a Domestic Violence Order was made by consent without admissions. The Applicant knew, at the time, that Ms D had reported him to the police and broken up with him because of his aggression. He knew he had a problem, and his father told him to wake up to himself, but he did not seek help because he did not know where to go.
The Applicant was in another relationship, which he said did not involve any violence, and it ended in 2021. After that, he went back to his drug-using friends, and his drug use increased. He was employed steadily in manual labour since leaving school. He sometimes used marijuana at work. When his cocaine use increased, he was using it after work each day, and during the day when he was not working.
In May 2021, the Applicant was in a relatively new relationship with “Ms T”. On 29 May 2021, they were together when Ms T asked to leave. She told him she had previously been in an abusive relationship and she did not want that to happen again. When she stood up, he pushed her onto a couch, grabbed her handbag, causing it to break, and pinned her down with his forearm. He struck her in the mouth with his hand, splitting her lip. He eventually removed his hand and allowed her to go to the bathroom. She cleaned her lip and told him she did not want to stay at his place.
Sometime later, Ms T’s friend called her, and she told them a fight with the Applicant had broken out, but she was fine. Her friend told her she would immediately send her boyfriend, Anthony, to pick her up. Anthony arrived a short time later with a friend and picked up Ms T, but the Applicant used his car to block their car. He dragged Ms T from her friend's car into his own car, causing bruising to her arm, and drove away. When the car stopped at a set of traffic lights, she tried to get out of the car. He physically restrained her and for approximately two hours, he drove dangerously around the streets, going through red lights and intersections, to keep her from safely leaving the vehicle.
Eventually, Anthony called Ms T’s phone and spoke with her on loud speaker. The Applicant said he would drive to Ms T’s house. As they arrived, Ms T got out of the car and ran toward her house. The Applicant followed her and prevented her from shutting the door with his foot. The told the Tribunal that he kept the victim in his car and kept her from closing the door to the house, because he wanted to talk with her.
Only two weeks later, on 12 June 2021, the Applicant and Ms T were at a party and she told his cousin she was afraid of the Applicant. He got into an argument with his cousin. Later, they were in the Applicant’s car, and he drove away despite her asking him not to. She panicked and kicked the windscreen, causing it to crack. The Applicant pulled over and Ms T got out and ran away, but she tripped and fell, hurting her shin and thigh. The Applicant chased her, picked her up and took her to his car. He drove her to her house where he demanded to know what she had told his cousin.
He put his hands around her throat, pinning her to the bed, and squeezed until she could not breathe. He pulled her hair, grabbed her neck and pushed her face into a mattress. She pleaded with him to stop. Later, he struck her in the face more than once, causing several bruises and cuts to her face. The Applicant told her he was sorry and gave her an ice pack. There was some arguing, and the Applicant took Ms T’s phone off her. After some intervention from Ms T’s friend, the Applicant took Ms T home.
Ms T’s injuries from that incident included:
§ Redness, scratch marks and bruising to neck;
§ Bruising around her eye;
§ Redness in her pupil;
§ Bruising to the back and side of her head;
§ Red scratches and red spots on the face and neck;
§ Bruise behind ear;
§ Cut to inside of check; and
§ Difficulty swallowing.
The Applicant told the Tribunal that he was angry, describing it as “next level rage”, and could not control his anger. He lost control and was not thinking, He stopped choking her when he realised she could not breathe, and he stopped attacking her when he realised he had hurt her. The Applicant tried to persuade Ms T not to report what he did to the police. However, she did a couple of days later.
On 12 January 2022, the Applicant was involved in a robbery with actual violence. His cousin, a different cousin to the one I referred to earlier, had lured a victim to a house on the pretext of selling a PlayStation to him. He texted the Applicant to tell him what he was doing, and he asked him to pick him up from the address. The Applicant’s cousin attacked the victim and took his money. When the Applicant arrived, the victim was yelling for help, saying he was being robbed. The Applicant kicked and punched him in the head and neck, and he attempted to put him in a headlock. He and his cousin then fled with the victim’s phone.
The Applicant told the Tribunal that he did not know his cousin was going to use violence, and that he attacked the victim because he was in a fight with his cousin – so he was helping his cousin. He thought the phone was his cousin’s phone and when he realised it was not, he threw it away.
As a result of this offence, the police searched the Applicant’s home and found evidence that he had been trafficking cocaine for around three months. He was remanded in custody.
The Applicant was affected by cocaine both times he attacked Ms T and when he attacked the other victim. He started dealing in cocaine to pay for his drug addiction.
When the Applicant was initially on remand, he was involved in a fight. There is a report that he procured a prisoner to assault another prisoner, but he denied it and there is no evidence that the allegation was proven, so I disregard it.
The Applicant was sentenced in August 2023 for a range of offences including:
·Dangerous operation of a vehicle;
·Choking suffocation (domestic relationship);
·Assaults occasioning bodily harm (domestic violence);
·Common assault (domestic violence offence);
·Deprivation of liberty;
·Trespass;
·Robbery with actual violence;
·Trafficking in dangerous drugs; and
·Supplying schedule 1 dangerous drugs.
While on remand, the Applicant had a lot of time to reflect, and he got clean. He told a psychologist who did a pre-sentence report “I needed this to wake up and stop surrounding myself with the wrong crowd”. He maintained his sobriety, achieved a clear mind, improved his health, and achieved a worker role in his unit.
Ms T provided a victim impact statement in which she said the offending had left her with major anxiety and trust issues when in the passenger seat of other vehicles. She developed nightmares about the attacks and began imagining other people in her life harming her in the same way. She needed significant time off work because she was too emotionally and physically exhausted to concentrate throughout the day. She thought she was going to die in the second attack. The bruising to her head where the Applicant pulled her hair was so painful that her head was constantly throbbing, it was hard to rest on a pillow, and it was hard to eat or close her jaw. In the weeks after the attacks, she lived in fear that the Applicant would come to her home to get revenge for reporting him to the police. She had cameras installed at her home and felt the urge to constantly check them.
The learned sentencing Judge said the Applicant’s treatment of Ms T was appalling, as was his involvement in the robbery with violence. Her Honour noted that his violent offending against Ms T had caused lasting damage, and she assumed that the robbery victim found that experience distressing. With respect to driving through red lights, she pointed out that he could have killed someone. Her Honour imposed sentences of five years’ imprisonment for the drug trafficking, two years’ imprisonment for robbery with violence, 18 months’ imprisonment for the strangulation offence, 12 months’ imprisonment for supplying schedule 1 dangerous drug and Interference/operation of a vehicle (domestic violence offence), and nine months’ imprisonment for the three assaults occasioning bodily harm (domestic violence offence). Lesser penalties, or no penalty, applied to the rest of the offences. The time the Applicant spent on remand was declared as time served, and his sentence was partly suspended.
On 1 September 2023 the Applicant’s visa was cancelled. In December 2023, while he was in immigration detention, he was allegedly caught in possession of drugs. The police record is brief, and it does not appear that any action was taken. In the hearing, the Applicant denied the allegation and was adamant that he did not take drugs in prison or detention. I am prepared to accept that.
In terms of the nature and seriousness of the Applicant’s offending or other conduct, crimes of violence are deemed to be very serious, as are acts of family violence. The fact that there were multiple episodes of violence adds to the seriousness, as does the actual violence involved, which was kicking and punching to the head, strangulation, severe hair pulling, and confining a person against her will, to name a few examples.
The drug trafficking is also serious. The Applicant knew the impact cocaine had on him: he became addicted and got into debt because of that. He could not control his rage on some occasions when he was affected by cocaine. Cocaine is listed as a dangerous drug for good reason. There is a very real risk that it will cause harm to users and to others who are harmed by users, and this case is an example of that. The Supreme Court made it very clear how serious the drug trafficking was by imposing a five-year prison sentence. There was a separate supply offence that attracted a lesser prison sentence. Custodial sentences are normally imposed as a last resort when no other sentence is appropriate. In terms of other serious conduct, the Applicant drove while under the influence of drugs, and he drove through red lights.
I have already addressed the impact of the family violence on Ms T. Suffice to say she experienced immediate and long-term trauma and will likely continue to suffer the psychological effects for some time. There isn’t any evidence from the other victim, but the sentencing Judge was prepared to assume he suffered some distress. The Crown’s statement of facts indicated that he suffered physical injuries and I think it is unavoidable that he would have suffered psychological harm from a vicious, unprovoked attack like that where he called out for help, but was instead attacked more, and he did not stand a chance because it was two against one.
The Applicant’s offending was relatively frequent with multiple offences in the space of five years. The seriousness increased, culminating with severe violence and drug trafficking. The cumulative impact of the repeated violence was that more than one member of the community was harmed.
There is no other conclusion than that the offending, as a whole, is extremely serious. Repeated offending would cause very severe physical and psychological harm. Therefore, any material risk of repeated offending is unacceptable.
The Applicant’s drug use contributed to some of his offending and other serious conduct. That includes the driving I have referred to, the violence and the drug trafficking, although he was sober when he contravened a Domestic Violence Order and broke a lead-light glass panel.
Further drug use will increase the risk of further offending of this nature. I accept that the Applicant does not have a problem with alcohol, and that he has not used drugs since he was incarcerated in January 2022. I accept that he no longer experiences physical cravings. He has, of his own volition and to his credit, participated in several drug and alcohol rehabilitation courses. He felt that his antisocial friends abandoned him when he was incarcerated. He does not regard them as friends and wants nothing to do with them. They reached out to him in immigration detention and he rebuffed them. He has pro-social friends in the community.
Cocaine made the Applicant feel good and supressed negative feelings. His plan is to avoid cocaine by doing other things that have that effect, such as exercise and playing football. He plans to continue with drug rehabilitation in the community. He has contacted Drug Arm about that. His re-integration plan seems sensible and realistic. He has a full-time job offer from a friend who runs his own business. His friend knows about his offending. He thinks his friend would be very disappointed if he took drugs and would probably fire him if he was affected by drugs on the job.
While all this seems very promising, the Applicant has not had an opportunity to prove his commitment and ability to abstain in the wider community since being incarcerated. I am not convinced that there is no risk that he will relapse.
When I asked the Applicant what was going through his mind when he drove dangerously and committed the violent assaults against Ms T, he said he was not thinking. When he attacked the male victim, he believed he was assisting his cousin, although he knew his cousin was committing a crime and the victim was pleading for help. When he kept Ms T in his vehicle and tried to stop her from closing the door to the house she entered, he wanted to talk to her. It seems that was also his motivation for contravening the Domestic Violence Order in 2016. This indicates to me a moral deficit in is decision-making, and a lack of regard for the law and for the basic human rights of others. When asked how it was okay with him to kick the male victim in the head, he said he did not know. It is apparent that he has not yet done the psychological work he needs to do to identify why he had a propensity for violence, and preparedness to engage in violence, let alone addressed that factor. That is of real concern.
The author of the pre-sentence report that was done in July 2023, only a year ago, said that the Applicant had suffered childhood psychological injuries from being exposed to domestic violence, resulting in anxiety and dysregulated emotions that he managed with alcohol, marijuana and cocaine. That sounds about right. He said the Applicant demonstrated difficulty in interpersonal relationships and poor stress management, which seems like vast understatements. He said he could benefit from clinical psychology interventions as long as he is motivated to improve. He recommended engaging with a clinical psychologist to help with interpersonal functioning, relationship skills, and resilience to stress.
He concluded that the Applicant still had a long way to go, but he was in good shape and heading in the right direction, and he had support from his family and friends. He thought the likelihood of re-offending was low, as long as he stayed away from cocaine and manipulative drug dealers, and experienced improved self-esteem from playing rugby league football again. This opinion seemed to gloss over, and not adequately address, the recurrent aggression and violence, and also the dangerous driving, so I do not accept the low risk assessment in relation to that sort of behaviour.
I do accept that the Applicant is in good shape. He has been abstinent for over two years and he has gained some insight into his offending. He did not try to deny, excuse or minimise it. He was refreshingly honest in his evidence. He said he thought the impact of his offending on Ms T was life-long trauma. He realised the profound impact it had on her when his best friend, who was her best friend’s partner, told him how it had affected her. He does not think he would engage in that behaviour again, as he believes he is a different person now.
I believe his expressions of remorse were genuine and that he genuinely regrets harming his victims. He has done an anger management course and engaged in ManUp group counselling. Having completed the ManUp course, he is now re-doing it as a refresher. According to the Applicant, the ManUp program does not specifically target domestic violence or general violence and aggression. Rather, participants are encouraged and assisted to identify things like trauma in their background and how it affects them now. They are encouraged to become more aware of their thinking and behaviour. This is a good start, but it is not the same as the targeted treatment from a clinical psychologist that was recommended in the pre-sentence report.
The Applicant has recently started livestreaming himself on Tik-Tok in the detention centre. He does this in full view of the guards, so he thinks it is allowed. He talks about his life in detention, why he is there and his efforts to turn his life around. None of that content was before the Tribunal, but I accept the Applicant’s and his father’s evidence about it. This is another way in which the Applicant is acknowledging his wrongdoing and the ways in which he needs to change.
Several relatives and friends wrote letters to the effect that they believe the Applicant’s offences are out of character and he can live a good life. They seem supportive, although the Applicant managed to conceal his drug taking and crimes from them before, which means he could do it again. I accept that they will encourage and support the Applicant to lead a law-abiding life, but they cannot make him – it really depends on him being, and staying, committed.
The Applicant’s father is law-abiding and heavily invested in the Applicant remaining in Australia. The Applicant plans to live with his father if he gets his visa back. His father used to work long hours and was not aware of what the Applicant was doing. He is now unable to work so he will have more awareness of the Applicant’s activities. I am satisfied that his father would be a protective factor. The Applicant is no longer in contact with the cousin who was involved in the robbery with violence, or anyone in that person’s immediate family.
I believe that the Applicant has mentally turned a corner, and he is doing well in custody. However, he does not have access to an intimate partner in custody, so he is not in the sort of situation that is high risk for him. His domestic violence behaviour was quite entrenched, including the incident in 2016 when he was not affected by drugs, the aggression towards Ms D in 2019, and the attacks on Ms T in 2021. He was also very quick to help his cousin beat up a stranger. Abstaining from this sort of conduct in future requires a big, permanent change in attitude, patterns of thinking and patterns of behaviour. I am not persuaded by the evidence before me that the Applicant definitely has, or will, achieve this. That means, there remains a risk that he would re-offend.
Taking all of that into account, Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITED BY THE NON-CITIZEN
The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
The Direction defines family violence to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. It can include unprosecuted acts, like the breaking of the lead-light panel. A member of a person’s family includes a current or intimate partner. I am satisfied that the incident in 2016 and the attacks on Ms T each involved a former or current intimate partner, and they caused that person to be fearful, so those incidents involved acts of family violence.
In this case, the family violence was very serious for the reasons I have already given. In the Applicant’s favour, he accepts full responsibility for his conduct, and he showed good understanding of the impact of his behaviour on Ms T, who was the main victim. He understood that his conduct affected other people, such as the friends who tried to help her. He has made some efforts, but not enough, to address factors which contributed to his conduct.
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Primary Consideration 5 is the last of the factors that go against the Applicant.
Non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can, and should, cancel a non-citizen’s visa if they raise serious character concerns through acts of family violence. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[3]
[3] Paragraph 8.4(3) of the Direction.
The Applicant repeatedly offended in Australia, including violent offences, and circulating a dangerous drug in the Australian community. He has committed acts of family violence. He has showed lack of regard for the laws, court orders and safety of members of the community in which he wishes to remain.
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Applicant has lived in Australia since 2012, when he was about 13 years old. His first offence was in 2016. He was involved in sport, most notably rugby league. I’m prepared to accept that the Applicant contributed to the clubs and teams he played for. After leaving school he worked steadily in labouring jobs, paying income tax. He is described in character references as a helpful person who was quick to volunteer to help when needed. The Tik Tok live streams are also a contribution to the community because they serve as a warning to others not to go down the path the Applicant did, and this is one of the messages he intends to get across.
I should consider the strength, nature and duration of ties to any family, or any social links with, Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. I should also consider the impact of the decision on these people.
The Applicant’s father and 11-year-old half-brother live here. His half-brother, “Child A”, was born here and is eligible for Australian citizenship. His father is not a citizen or permanent resident, but is on a special category visa. The Applicant has many extended family members who live here and have expressed support for him in letters they provided. I accept that they would be saddened if the Applicant is deported. It is not apparent whether these people are citizens or permanent residents, so that reduces the weight I give with respect to them. The Applicant also has friends including close family friends. I accept that he has significant familial and social ties to the Australian community. I accept that he has a close relationship with Child A. He also has a close, mutually supportive, relationship with his father which has improved in recent years.
Around three and a half years ago, his father was diagnosed with Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) which is a disease that attacks the nervous system. He had to stop working which caused his income to drop significantly, causing financial strain. He is reliant on the disability support pension and around $15,000 per year of total permanent disability payments. The Applicant was caring for him until he was remanded in custody. He has been managing without the Applicant’s help since January 2022. A letter from his treating neurologist indicates that his condition is very debilitating and physically limiting. His treatment includes intravenous immunoglobulins every three weeks.
The Applicant’s father gave evidence in person in the hearing and it was apparent that he was not in the poor condition described by his neurologist. Indeed, he has achieved remarkable improvements through sheer determination and the help of a friend who does physical therapy with him. For example, his neurologist wrote that he could not sit for more than 20 minutes and he needed a wheelchair to get around, yet he sat in the witness box without issue for over an hour and he said he is able to run across his backyard. He does not presently need anyone to come into his home to help him with everyday living. He has a virtual support network of other sufferers, which he finds motivating. He also sees a psychologist, which he finds helpful. However, his condition is progressive and he could deteriorate quickly in a short period of time.
The Applicant’s father would like the Applicant to live with him, which would ease his financial strain and he would have someone there in case his condition deteriorates. He has a lot of family around, but he thinks they are too busy with their own lives and not in a financial position to help him. The Applicant made around $12,000 in his first month streaming on Tik Tok, and he thinks if that continues, he would not need a job and he could be much more available for his father. The Applicant has already sent his father some of the money he is making. It is reasonable to assume that he would send him money, if he could afford it, wherever he is.
If the Applicant is deported, his father would seriously think about going to New Zealand with him. This would reunite him with his two other sons who live there, but it would separate him from Child A. He thinks he would visit Child A during school holidays, but that is not as good as the current arrangement whereby Child A spends every second weekend with him. I accept that this would negatively impact Child A. He could still communicate with Child A via electronic means as he does now.
He thinks that, if he moved to New Zealand, the transition with respect to his treatment would not be smooth. In Australia, it is paid for by the Australian and New Zealand governments. However, he thinks he would have to go through the diagnostic process again, pay a portion of it, and the quality would be lower. For example, the process would take longer, and the chairs would be less comfortable. However, his concerns were based on second hand bits and pieces of information. He has not looked into the matter. He would have to live in a city to have access to a hospital, so he would probably choose Wellington, which is a couple of hours drive from his two other sons.
I accept that if the Applicant is deported it will negatively impact his father - either because he will not have the benefit of the Applicant’s financial and practical support here, or because he will move to New Zealand, which will separate him from Child A. Possibly, his treatment would not be as cheap or convenient, and his friend would not be able to give him physical therapy, so he would have to find someone as good and pay for that. I accept that the latter option would negatively impact Child A. Obviously, so would the fact that the Applicant would be separated from Child A.
I allocate moderate weight to this Primary Consideration in favour of revoking the cancellation.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I have to determine whether a non-revocation decision is or is not in the best interests of a child affected by the decision. The Applicant nominated one such child, Child A, who will be a minor for another seven years.
I accept that the Applicant and Child A have a close relationship. They used to spend time together and they keep in touch. Child A lives with his mother and her partner, “Mr A”. The Applicants father thinks well of Mr A and they all have a good relationship. I am satisfied that Child A is well cared for and has two good male parental role models in his life, being the Applicant’s father and Mr A. He has never lived with Child A and he has not been physically present in Child A’s life since January 2022. The Applicant is not a parental figure and there is no suggestion that he would ever fulfil that role. He will play a positive role in Child A’s life if he remains abstinent and law-abiding, and there is a risk that he will not. While I accept that Child A misses the Applicant, I am not satisfied that the separation has caused hardship of any kind, or that the Applicant’s removal from Australia would do so. If the Applicant’s father moved to New Zealand with him, this will negatively impact Child A, although it is not known whether that will happen.
I allocate between low and moderate weight in the Applicant’s favour to this Primary Consideration.
LEGAL CONSEQUENCES OF THE DECISION
The Applicant expressed concern that there were some changes going on in New Zealand that would result in the Māori being discriminated against by the government, but he was not able to point to any tangible negative impact this could have on him. No properly articulated protection claims have been made and no protection finding has been made, so this Other Consideration is neutral. I do not allocate any weight on way or the other.
EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if removed to New Zealand in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand, taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in New Zealand.
As the Applicant lived in New Zealand until the age of about 13, and has visited there frequently, I do not accept that there would be any language or cultural barriers there.
The Applicant is a 25-year-old man who is able bodied and does not have any medical or mental health conditions, but he does have a vulnerability to drug dependence. As a citizen, he will be able to access government income support and subsidised medical care. He expressed worry about housing and the economy. He has started talking to his mother again, but does not think he could live with her. His older brother has his own home, partner and two young children. He might be able to help somewhat. He has relatives in New Zealand on his mother’s side who he has not seen since moving to Australia.
He has worked in various manual labour jobs including in logistics, picking and packing, civil construction, property maintenance and tiling. He also has a budding social media income stream in which the content is basically himself. I am satisfied that he has employment skills and the ability to earn income. I accept that he will suffer some emotional hardship if he is removed to New Zealand, but he will have the ability to communicate with family for emotional support.
I allocate only very limited weight in the Applicant’s favour under this Other Consideration.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
I am also obliged to consider any impact of removal on any Australian business interests, but I do not think there are any. The Applicant did not claim his removal would impact any business and the evidence before me does not suggest that it would. He can continue with his Tik Tok activities anywhere. No weight is allocated under this Other Consideration.
CONCLUSION
I have to now weigh all of the Considerations and come to a conclusion. Because I think the Applicant genuinely has turned a corner mentally, I would like to give him another chance in the Australian community, but I cannot because the offending is so serious and harmful, and it was persistent. If the Applicant had committed one serious offence and then turned his life around, he would have a real chance at getting his visa back, but he kept offending and that is the big problem. There is also the risk, although it may not be a high risk, of re-offending. The Direction says that the safety of the Australian community is paramount, so I cannot give the Applicant his visa back. I have to affirm the reviewable decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
......[SGD]........
Associate
Dated: 24 July 2024
Date of hearing: 15 and 16 July 2024 Solicitor for the Applicant/Applicant:
Tea Anaru Puohotaua
Self-RepresentedSolicitor for the Respondent Lucinda Taylor
Minter EllisonAnnexure A: Exhibit Register
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED G G-Documents
(G1 to G25, 166 pages)
R Various 15 May 2024 A1 Applicant’s Combined Certificates
(18 pages)
A Various 5 June 2024 A2 Statement of Yani Puohotaua (2 pages) A 30 May 2024 5 June 2024 A3 Statement of Peter Sixtus (1 page) A 2 June 2024 5 June 2024 A4 Statement of Mark Graham (2 pages) A 23 May 2024 5 June 2024 A5 Statement of Margaret Mowat (2 pages) A 25 May 2024 5 June 2024 A6 Statement of Harete Hipango (7 pages) A 3 June 2024 6 June 2024 A7 Statement of Andrew O’Kane (1 page) A Undated 6 June 2024 A8 Statement of Kimberly Ann Rogers (3 pages) A Undated 6 June 2024 A9 Statement of Hamish Puohotaua (2 pages) A 5 June 2024 6 June 2024 A10 Statement of Dylan Paul Brandon (1 page) A 6 June 2024 6 June 2024 A11 Joint statement of Applicant’s family members (2 pages) A 24 May 2024 6 June 2024 A12 Medical Report of Dr Nabeel Sheikh (3 pages) A 17 July 2022 6 June 2024 A13 Man-Up Program Certificate of Completion (1 page) A 23 June 2024 10 July 2024 A14 Applicant’s Reintegration Plan (2 pages) A Undated 10 July 2024 R1 Respondent’s Statement of Facts, Issues and Contentions (10 pages) R 27 June 2024 27 June 2024 R2 Respondent’s Supplementary Documents (S1 to S59, 177 pages) R Various 27 June 2024 R4 Ministerial Direction 110 (24 Pages) R 7 June 2024 27 June 2024
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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