RAHARUHI TE HUIA and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 477
•7 March 2022
RAHARUHI TE HUIA and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 477 (7 March 2022)
Division:GENERAL DIVISION
File Number:2021/10088
Re:Ihaia Hayden RAHARUHI TE HUIA
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:7 March 2022
Date of written reasons: 18 March 2022
Place:Brisbane
The reviewable decision of the Respondent, dated 14 December 2021, is affirmed.
..........[SGD]............
Member R Maguire
Catchwords
MIGRATION – non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test by virtue of his “substantial criminal history” – whether there is “another reason” to revoke the mandatory cancellation – consideration of Ministerial Direction No 90 – singular domestic violence offence; independent and authoritative evidence of repeat strangulation incidents – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1899 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases
Dunasement v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1994
Manebona and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4680
Minister for Home Affairs v Buadromo [2018] FCAFC 151
R v HBZ [2020] QCA 73
The State of Western Australia v Cheeseman [2011] WASCA 15Secondary Materials
Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CAUnited Nations Convention of the Rights of the Child
REASONS FOR DECISION
Member R Maguire
18 March 2022
BACKGROUND
The Applicant, Mr Ihaia Hayden Raharuhi Te Huia, seeks review of the decision of a delegate of the Minister (“the Respondent”), dated 14 December 2021, made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”).[1]
[1] Exhibit R1, Section 501G Documents, G2, pages 9 to 33.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant 28 day time period provided for in regulation 2.52 of the Migration Regulations 1994 (Cth) (“the Regulations”), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is “another reason” why the mandatory cancellation should be revoked.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or their delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a, “substantial criminal record”, as defined by section 501(7). Relevantly, section 501(7) of the Act states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…
The Applicant is a 25-year-old male citizen of New Zealand, who moved to Australia with his family on 12 January 2010. He has returned to New Zealand eight times since that time for periods up to about one month.[2]
[2] Ibid, pages 394 to 395.
On 4 August 2020, the Applicant was convicted in the District Court of Queensland at Southport of ‘Grievous Bodily Harm – Domestic Violence Offence’ and sentenced to two years’ imprisonment.[3]
[3] Ibid, pages 40 to 46.
On 8 September 2020, whilst the Applicant was serving that term of imprisonment (that is, in actual criminal custody), the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa as he did not pass the character test, pursuant to section 501(6)(a) (substantial criminal record), on the basis of section 501(7)(c) (i.e., that he had been sentenced to twelve months or more imprisonment).[4]
[4] Ibid, pages 396 to 403.
Notice of this decision was given to the Applicant by hand. In accordance with regulation 2.52(2)(b) of the Regulations, the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days of receiving the notice. The Applicant made representations to the Minister on 25 September 2020, within the period specified, requesting revocation of the cancellation decision.[5] The representations were later supported by a Personal Circumstances Form, dated 22 December 2020.[6]
[5] Ibid, pages 50 to 54.
[6] Ibid, pages 112 to 130.
On 14 December 2021, pursuant to section 501CA(4) of the Act, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act.[7] On 22 December 2021, the Applicant made the present application to this Tribunal for a review of that decision.[8] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[9]
[7] Ibid, pages 9 to 33.
[8] Ibid, G1, pages 1 to 8.
[9] Migration Act 1958 (Cth), section 500(6B).
The hearing of this application took place on the 17 and 18 February 2022, respectively. The Applicant appeared via video link from Christmas Island Immigration Detention Centre and was represented by Ms Jennifer Samuta of Samuta McComber Lawyers. The respondent was Represented by Mr Kyu-Won Kim of Clayton Utz. The Tribunal also received oral evidence from the witnesses set out below. The complete suite of written material forming the Exhibit Register is further particularised in ‘Annexure A’ of this decision.
By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, the representatives of the parties agreed that that for the purposes of this review, and section 500(6L)(c) of the Act, the 84th day was 8 March 2022.
On Monday, 7 March 2022, the Tribunal affirmed the decision under review (see above), and now provides its written reasons. Note that passages in bold within the text of this decision denote Tribunal emphasis.
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
It is not disputed by either party that the Applicant has made the representations required by section 501CA(4) of the Act.
There are therefore two issues before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on these grounds, the mandatory cancellation of the Applicant’s visa should be revoked.
In considering section 501CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…
[10] [2018] FCAFC 151.
DOES THE APPLICANT PASS THE CHARACTER TEST
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have, “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”. Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total length of the terms.
On 4 August 2020, the Applicant was convicted in the District Court of Queensland at Southport of Grievous Bodily Harm – Domestic Violence Offence and sentenced to two years’ imprisonment.[11]
[11] Exhibit R1, Section 501G Documents, G2, pages 42 to 46.
As the custodial term imposed was, “a term of imprisonment of 12 months or more” the Applicant does not pass the character test by virtue of his, “substantial criminal record”, as defined in section 501(7)(c) of the Act.
The Applicant has also conceded that he fails the character test and has not disputed that the original decision to mandatorily cancel his visa was properly made under section 501(3A) of the Act.[12]
[12] Exhibit A1, Applicant Statement of Facts, Issues and Contentions, page 3, paragraph 4; page 7, paragraph 13; See also Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 2, paragraph 2.
Having regard to the foregoing, the Tribunal is satisfied that the Applicant does not pass the character test, pursuant to section 501(6)(a) of the Act and therefore cannot rely on section 501CA(4)(b)(i)[13] of the Act for the mandatory cancellation of his visa to be revoked.
[13] This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”, or “Direction 90”) has application.
The purpose of the Direction, as stated in paragraph 5.1(4), is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.
Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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 other 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 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) of the Direction provides that in applying the considerations, (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out the following Primary Considerations in making a decision under section 501(1), 501(2), or 501CA(4):
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The best interests of minor children in Australia; and
(4) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 9 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
The Tribunal now turns to a more detailed consideration of the Direction.
Primary Consideration 1: Protection of the Australian Community
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind the principle 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. Decision makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires consideration to be given to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of Conduct
Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court 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; and
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Risk To Australian Community
Paragraph 8.1.2(1) of the Direction requires that 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 becomes lower as the seriousness of the potential increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction requires that in considering the risk that maybe posed by the noncitizen to the Australian community, decision makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen 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).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction reflects the Government’s 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.
Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:
(a)the non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven, howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.
Paragraph 8.2(3) of the Direction requires that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)Rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)The extent to which the non-citizen understands the impact of their behaviour on the abuse and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the noncitizen engage in further acts of family violence.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction requires decision-makers making a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
Paragraph 8.3(2) of the Direction provides that this consideration applies only if the child is, or would-be, under eighteen years old at the time of the decision.
Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns eighteen, 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; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4 of the Direction details the expectations of the Australian Community as follows:
(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, expects the Government to not allow such a non-citizen to enter or remain in Australia. In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through contact, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children, or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, commercial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of the duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(2)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(3)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Other Considerations
Paragraph 9(1) of the Direction requires decision makers to take into account Other Considerations, including, but not limited to:
(a)international non-refoulement obligations in accordance with paragraph 9.1;
(b)extent of impediments if removed in accordance with paragraph 9.2;
(c)impact on victims in accordance with paragraph 9.3; and
(d)links to the Australian community reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.
The Tribunal now turns to a consideration of the evidence before it.
EVIDENCE BEFORE THE TRIBUNAL
Documentary Evidence
On 7 February 2020, Laneway Legal, the legal representatives of the Applicant at the time, wrote to the Department in response to a Notice to Consider Cancellation, under section 116(e) of the Act, sent to the Applicant on 14 January 2022.[14] The submissions contained in that letter were addressed to section 116(e) of the Act, and enclosed numerous annexures which were later re-submitted together with other material after the Applicant’s visa was subsequently cancelled under section 501(3A).
[14] Exhibit R1, Section 501G Documents, G2, pages 56 to 66.
Following the cancellation of the Applicant’s visa, on 8 September 2021, in his Request for Revocation form, dated 25 September 2020, the Applicant stated reasons for revocation as follows:[15]
I Ihaia Raharuhi Te Huia would like you to consider not revoking my visa for the following reasons:
I’ve grown up here since a very young age (10) I now call this place home. All of my family live here and I don’t have any back in New Zealand to go back to. I also have a full-time job painting I will get back into as soon as I am released on 3 November. But most importantly I have three young beautiful children here who I have split custody of and if deported would impact deeply on our relationship. They would grow up without a father and me without my children who mean everything to me.
I like to add that since the offence I have undergone rehabilitation and seen a psychologist and psychiatrist on a weekly basis to ensure my mental health does not deteriorate. I believe I am of no risk of reoffending.
[15] Ibid, pages 50 to 53.
On 29 October 2021, Laneway Legal wrote to the Department enclosing annexures in support of the Applicant’s request for revocation of the mandatory cancellation of his visa[16] and made comprehensive submissions in relation to Direction 90, which the Tribunal has considered.
[16] Ibid, pages 67 to 90.
The Applicant submitted a Personal Circumstances Form, dated 22 December 2020,[17] in which he listed his place of birth as Wellington, New Zealand, and his citizenship as New Zealand. He also described both his parents as New Zealand citizens. He stated that he had travelled to Australia with his parents, a brother, sister, and a cousin. He described his current relationship status as separated and provided no partner details. He listed three minor children, a daughter presently aged six, and a fraternal twin boy and girl, both presently aged four. He said that these children lived with their mother at Coomera from Sunday to Wednesday and with him, or in his absence, his parents, at Hope Island from Wednesday night to Saturday. He described his relationship with his children in his statutory declaration, dated 7 February 2020, and stated that he continued to have regular contact with them via telephone while he was in jail and via video link since being in immigration detention.
[17] Ibid, pages 112 to 130.
The Applicant referred to a report by Dr Jacqui Yoxall, a clinical and forensic psychologist, regarding the impact of an adverse visa cancellation decision on his children. He also referred to a statutory declaration by his former partner to support this claim. The Applicant disclosed reciprocal Protection Orders between he and his former partner, as well as a parenting plan detailing the shared care arrangements of the children. He also disclosed twenty relatives living in New Zealand and fourteen living in Australia. He said he would not reoffend and that he had worked hard to address the underlying issues which led to his offending; these being his mental health issues and abuse of prescription medication. He also referred to his engagement with Dr Yoxall over a period of some eighteen months. He said that he would continue to engage with his treating team if his visa is reinstated and he is permitted to return to the community. He said he would also have support from his parole officers until 22 July 2022. The fact that he was only incarcerated for a period of three months, during a period of COVID-19 restrictions meant that he was not a candidate to be enrolled in any courses during his time in prison. He said his biggest rehabilitation effort was made after his offending up to the date that he was sentenced, in August 2020. During that time, he stated that he engaged regularly with his General Practitioner and psychiatrist as well as attending counselling with a psychologist. He said he had been assessed as a low risk of reoffending, and that if his visa cancellation is revoked, he intends to comply with all conditions of his parole and will take every opportunity offered to him to complete courses, and engage with his GP, psychiatrist, and psychologist.
He said that his removal from Australia would cause much harm to his children and their mother, who may be forced to rely on Centrelink. The Applicant disclosed that he left school in Year 11 when he was seventeen years old and had worked in a car washing and detailing business, as a boat builder, and as a labourer (painter).
The Applicant said that he suffered from depression and had a history of suicide attempts. He reported that he was taking 10mg of Escitalopram daily to treat his depression/anxiety, as well as Melatonin (2 x 2mg) for sleep, and Mitazipine (30mg) for depression anxiety and sleep.
The Applicant said he was not facing any criminal charges in New Zealand but that he did have concerns or fears about what would happen to him on his return, referring to paragraphs 69 and 70 of his statutory declaration, dated 7 February 2020.
This statutory declaration[18] was, to some extent, repeated in a more detailed statutory declaration, dated 25 August 2021.[19] Together, these declarations recorded the Applicant’s arrival in Australia in 2010, at the age of thirteen years, his education until Year 11, and his subsequent full-time employment – first, in a car washing and detailing business, then at a boat building business, and most recent job as a painter.
[18] Ibid, pages 94 to 98.
[19] Ibid, pages 100 to 110.
The Applicant described his relationship with his ex-partner, who shall be referred to in this decision as “KF”, and their three children, all of whom were born in Australia and are Australian citizens. He also referred to a parenting plan made at court on 9 January 2019 which set out the days the children would live with him and the days they would spend with his ex-partner. He said this arrangement operated until he was incarcerated, on 4 August 2020.
The Applicant described how he met KF in 2012 when they were both sixteen years old. Their first daughter was born in 2015, and they both started to feel stress in the relationship after this point in time, with the relationship becoming intermittent. Twins were born in 2017 – a boy and a girl. The Applicant felt that KF was not coping and was suffering from postnatal depression, and around this time he described the relationship as, “toxic”. He said that this led to a breakdown in his own mental health, and he became so low that he was suicidal.
He said that there were a lot of arguments, usually over petty things which would escalate quite quickly. He said KF’s default was to get very angry and abusive and his was to avoid contact and run from the situation, causing her to become physically aggressive. He stated that she threatened him with knives on many occasions but never hurt him with them. There were many breakups and reunions. The further deterioration in the relationship led to mutual, uncontested, protection orders.
Following an incident in February 2018, a temporary Domestic Violence Order (“DVO”) was made against him, with the order subsequently being made final on 25 October 2018. This order required that the Applicant be of good behaviour towards KF and not commit domestic violence against her. He was also prohibited from going within 100 metres of her, or her place of residence. This appears to have precipitated a further deterioration in his mental health, and he was a voluntary patient in the Gold Coast University Hospital mental health unit for two periods, each lasting a few days, in November 2018. He was subsequently prescribed medication in the form of Escitalopram, Lorazepam, and Seroquel for anxiety.
On 22 December 2018, Queensland Police issued a Police Protection Notice against KF,[20] under section 105 of the Domestic and Family Violence Protection Act 2012 (Qld), naming the Applicant as the aggrieved party. This notice required her attendance in the Southport Magistrates Court on 9 January 2019, and prohibited her from approaching, or attempting to approach within 100m of the Applicant, unless relating to the children. This notice was effective from 7:30 PM on 22 December 2018, until 9 January 2019.
[20] Ibid, pages 256 to 258.
The Applicant acknowledged that both he and KF were in breach of the protection orders when they were together on 3 February 2019. He said that his last memory on that day was grocery shopping, and that he had no recollection of the events which led to the subsequent criminal charges against him. He stated that his next memory was waking up in the watchhouse on 4 February 2019 believing he had been, “kidnapped”. He blamed his lack of memory of the event on an overdose of his medication. He went to court on 4 February 2019 and was subsequently released on bail. One of the conditions of the bail was that he should have no contact, either directly or indirectly, personally, or otherwise with KF.[21] Notwithstanding this condition, immediately upon his release, he attempted to contact KF and on 14 February 2019, he was charged with breach of bail and was remanded in custody for one week (the first time he’d ever been held in custody). He was subsequently released on 22 February 2019.
[21] Ibid, page 295.
Following his release from custody, the Applicant continued to see his psychiatrist and psychologist, and stated he believed this had been very good for him. The Applicant recorded that a subsequent child safety investigation commenced because of reports of family violence between himself and KF, however it concluded that no protection was necessary for their children. During the investigation, the children resided with their maternal grandparents in Townsville and the Applicant stated that he missed them greatly. He recorded that his mental health deteriorated during this period, and he attempted overdosing. At the time, he was living with his parents and had family support. Following the return of the children, he states that his mental health improved.
The Applicant stated that being sent back to New Zealand would separate him from his very close family, as well as his brother, wife, and children, who live nearby and with whom he is in regular contact. He also described a very close relationship with his younger sister and expressed concern about the impact of his deportation upon her. He expressed fears for his own mental health in New Zealand as his supports (i.e., close family) and his job are in Australia.
The Applicant expressed strong concerns about his deportation and its impact upon his children. He had been present at the birth of each of them. He described a very active role as father and says he has a strong commitment towards his children.
The Applicant also expressed concerns about KF’s capacity to cope financially, or mentally without the support he provided when he was not incarcerated, or detained.
The Applicant stated that he did not use any illicit drugs or alcohol while in jail or immigration detention, nor had he taken any medication that had not been prescribed for him. He described stress and anxiety and addiction courses he had attended while in immigration detention and said that when he is released back to the community, either in New Zealand or Australia, he’ll go straight to a GP, psychiatrist, and psychologist and that this (managing his mental illness) will be part of his life forever. He said he’d always considered himself a pretty calm-natured person but wanted to undergo anger management and controlling emotions counselling because he had learned during his relationship with KF that there was a time when he lost control and hurt her. He doubted this would ever happen again as he did not abuse medication anymore.
The Applicant also spoke of his former boss, Mr Lachlan Finney, with whom he had remained in contact, and with whom he would work for again if he is able to keep his visa and remain in Australia.
Evidence of KF – Applicant’s former partner
The Applicant also provided a statutory declaration,[22] dated 9 December 2020, by his former partner, KF. In it, KF said that she and her children were Australian citizens. The Applicant had been present at the children’s births and was financially supportive. She spoke positively of the Applicant’s commitment to giving quality care to their children. She said that when the children stayed with him, they always came back to her clean, happy, and filled full of beautiful stories of the things they did with their dad. She described the Applicant as a, “generous, kind-hearted, humbled man and devoted father.” They are planning to continue existing parenting arrangements and give him the opportunity to make up for lost time with the children. She said that their older daughter, who shall be referred to as “KY”, idolised her dad and had a hard time adjusting to not being able to see him. She wears a locket he gave her, and sleeps with his picture beside her bed. KF spoke of the Applicant’s absence being a, “huge detriment” to all her children’s psychological well-being.
[22] Ibid, pages 131 to 133.
KF said her second daughter, who shall be referred to as “KO”, would struggle the most not seeing her father. She said that she cries every day saying, “I miss my dad”. She said KO did not wish to engage with any of her friends in childcare. She described how KO sits being cuddled by teachers and asks all day when her father will be coming home. She anticipated that in the event the Applicant were to be deported the child, KO, would require an extensive amount of therapy for abandonment issues and anxiety, and because she is only three and would have many years of, “not being able to wrap her head around” why the Applicant was not present in her life.
KF said that her son, who shall be referred to as “IZ”, had developed behavioural and anger issues since being separated from his father. She said he would be affected by not having a father figure to teach him the way of life and would have further abandonment issues.
KF said that she had already been impacted by not having the Applicant around and had to cut down her work hours to care for the children. This had caused a financial and emotional strain on her and the children. She said that after many therapy sessions she realised that she had grown up being abused, and that the Applicant was the victim of her abuse for five years which, “ended up in a situation on 3 February 2019 which could have been tragic”. She said the Applicant had shown remorse for his actions. She said he was, “no menace to Australian society”, and their children deserved to have their father around.
The Applicant also provided a further statutory declaration, dated 22 August 2021, by KF.[23] In it, she elaborated on the circumstances of their, “up and down” relationship and blamed herself for instigating most of their arguments. She described her verbal and physical abuse and aggression towards the Applicant, including instances where she pulled knives on him and threatened to kill him, and one time when she bit him on the nose. She described her own abusive upbringing and use of drugs and binge drinking as a way of coping. She maintained that she had not been fearful of the Applicant. She said she would not describe him as an aggressive person, but his conduct towards her was, “not excusable”. She stated that there had been no further domestic violence in the relationship since the night of his assault upon her. She had undergone therapy and had noticed a big improvement. She had applied to the court to vary the domestic violence order so that the Applicant could have contact with the children. She did not anticipate any further instances of domestic violence involving the Applicant as she stated that they have both learned from their past and address their own respective issues. She said all three of her children were normally happy, inquisitive, and well-behaved, but this had declined since being separated from the Applicant.
[23] Ibid, pages 134 to 142.
She said that she had observed a decline in the mental health of KY since the Applicant had been incarcerated, and she had now become a, “very reserved, emotional and anxious little girl”, who suffers from separation anxiety. She struggled when she saw her friends’ father’s collect them from school, and she was getting into trouble at school. The child has expressed a desire to live with her father, and KF would not stand in the way of this.
KF said that she had also observed changes in the emotions of her daughter, KO, spending 40 minutes a night crying hysterically because she wanted her father. Her childcare teachers had also mentioned that she spent a fair amount of time each day asking her friends about their dads. She expressed the view that KO’s emotions were getting worse.
KF also said that IZ had faced obstacles since his father was incarcerated and had seen a specialist due to behavioural issues – this included attacking babies, teachers, and other children. She said the child had become very defiant and aggressive.
KF said that the children were not really exposed to the domestic violence between her and the Applicant and she did not believe that they had been negatively impacted by what went on in the relationship. She stated that the Applicant had never harmed or been abusive in any way towards the children. She said she had no concerns about the children being with the Applicant. She believed that he had worked hard to get himself healthy. She was concerned about the impact on the children if the Applicant were not allowed to return to Australia. She said she was now completely sober from drugs and alcohol. Since the Applicant has been in jail and detention, KF has not been able to do overtime which has caused her massive financial stress (in light of not being able to rely upon the Applicant’s financial support). She said it was also taking a toll on her mental health and that she did not believe she could afford to take the children to see their father in New Zealand every holiday. She felt she could not move to New Zealand as she has no family or social connections there and would be isolated.
Medical Evidence
Dr Sam Aung – General Practitioner
The Applicant also provided a letter,[24] dated 3 August 2020, from Dr Sam Aung. He stated that the Applicant was a regular patient or his, and that he had prescribed him medications in the form of lorazepam and Quetiapine in 2018 after he had been released from hospital. He said that the Applicant had overdosed on prescribed medication on 3 February 2020 and been subsequently hospitalised. He said his mental condition had improved since then and that he was doing really well and was back to his normal self.
Dr Samit Roy – Consultant Psychiatrist
[24] Ibid, page 145.
The Applicant also provided reports,[25] dated 6 February 2020 and 6 August 2020, respectively, from Dr Samit Roy, who had reviewed the Applicant on twelve occasions between 28 March 2019 and 4 June 2020.[26] Extracts of these reports included:[27]
[25] Ibid, page 153.
[26] Exhibit R2, Summons Documents, SM1, page 94.
[27] Exhibit R1, Section 501G Documents, pages 153 to 154.
Mr Te-Huia has been suffering from Depression and Anxiety, which had started in December 2018. It is highly likely that the trigger for his mental health problems was a “bad breakup” with his ex-partner (mother of his three kids), but subsequently other psychosocial issues had compounded his problems.
Currently (at last review):
Mr Te-Huia’s mood has been quite stable, aside from the understandable stress and worry related to the court case. One of the most significant stressor (sic) is related to his Immigration status, apparently he might get deported back to NZ. He has had thoughts of harming self but no plan or intent. There were no thoughts of harming anyone else. No psychotic symptoms. No D&A issues. Doing full-time painting work. Living at home with parents, three kids split custody. Sleep has been erratic, that appetite has been good. He had positive orientation for the future.
…
Impression:
· Adjustment Disorder with Depression and Anxiety (Improved).
· Substance Misuse (in remission).
…
Overall I think Mr Te-Huia has been trying to do all the right things despite some difficult life circumstances. He has been abstaining from drugs, taking his prescribed medications, engaging with his treating team, working full-time, living with his parents, keeping away from trouble, looking after his kids and overall being a functional and productive person. His kids need him and in my opinion it would be disastrous for all concerned if he were to be deported back to New Zealand.
Dr Jacqui Yoxall – Psychologist
First report
The Applicant also provided a 25-page report,[28] dated 3 August 2020, from Dr Jacqui Yoxall, which was prepared following an assessment via video conference on 24 July 2020. She also interviewed the Applicant’s mother.
[28] Ibid, pages 157 to 182.
Dr Yoxall described the Applicant as having presented as genuinely remorseful, and a reliable historian, who had expressed anxiety about his upcoming sentencing and the prospect of deportation. She reported that he identifies as Maori and had achieved well at school. He had worked continuously since leaving school, except for an eight-month period between November 2018 and July 2019, during which time he was unemployed as a consequence of his mental health issues. He had started smoking cannabis at the age of fifteen and smoked daily until the birth of his first child when he was nineteen years old. He subsequently used cannabis intermittently. At the time of interview, he said he had not used cannabis for over one year and denied using any other illicit drugs.
Dr Yoxall described a volatile relationship between the Applicant and his ex-partner which featured many separations and reconciliations, as well as cross-applications for Protection Orders regarding domestic violence. She referred to the Protection Order made in the Southport Magistrates Court on 25 October 2018 (in force until 25 October 2022) and set out, at some length, the Applicant’s response to the episode giving rise to it, and the assault of 3 February 2019. She recorded that the Applicant expressed continuing love for KF.[29]
[29] Ibid, page 161; page 177.
Dr Yoxall recorded that, “there is no information to suggest that the assault involved a credible threat of death.”[30]
[30] Ibid, page 178.
Dr Yoxall described the medical care the Applicant had received following the assault and reported that the Applicant had said he had benefited from it and planned to continue treatment and was remorseful for his conduct. She concluded there was a causal link between his mental health and his offending, and that his current level of risk of re-offending was low, but added, “if he was to experience a relapse to mental illness or substance misuse this risk would increase.”[31]
Second report
[31] Ibid, page 181.
Dr Yoxall provided a second 33-page report,[32] dated 20 August 2021. For this report, she interviewed the Applicant, his mother, and former partner, as well as consulting with Dr Roy. She reported that the Applicant had stated that at the time of review he was physically healthy and psychologically stable. At the time of review, the Applicant denied any ongoing difficulties with sleep, appetite, energy, motivation, attention, and concentration of mood. He also denied feelings of depressed mood, significant anger, or self-harm. He also denied any problems with irritability, or anger.
[32] Ibid, pages 191 to 234.
Dr Yoxall recorded that in the two years since his offending, the Applicant had engaged in intensive psychiatric and psychological treatment of his Major Depressive Disorder and his prescription medication misuse. He had developed substantial personal insight and a range of strategies to better manage his emotions and negative past experiences. He had also continued to participate in various programs in immigration detention. She expressed the view that the Applicant must continue to manage his vulnerability to depression and avoid relapse to substance misuse to ensure that the risk of reoffending against his former partner, or another potential partner in the future, is minimised. Estimation of his actual level of risk to a spouse in the future was difficult given the substantial disparities between his account of historical incidents and that of his former partner, KF. If KF’s version of events were considered, his risk of reoffending was elevated to a high level, and it would be strongly recommended that he engage in a comprehensive program for perpetrators of domestic violence and ongoing psychological treatment to address the factors that elevate his risk of spousal violence.[33]
[33] Ibid, page 231.
She stated:[34]
Therefore overall, in consideration of all these factors it would appear that Mr Te Huia does present with a risk of reoffending in terms or spousal assault but the degree of this risk is not clear. At best it is low, and at worst it is high. In my view the intervention he has engaged in, and the experience of prison and having his visa revoked and being in immigration detention are all factors that reduce his risk of reoffending. It is my view that the overall risk of spousal assault is dependent upon Mr Te Huia managing his vulnerability to depression and avoiding relapse to substance abuse and continuing to utilise what he has learnt in terms of self understanding, knowledge about domestic violence and strategies to manage emotions and anxiety.
In my opinion, Mr Te Huia’s risk of violent offending against other family member or strangers is extremely low.
[Tribunal bolding for emphasis]
[34] Ibid, page 232.
Dr Yoxall said that the impact of forced separation on each of his minor children due to his deportation, or for other reasons, could be psychologically catastrophic and that exposure to future domestic violence can also be psychologically catastrophic to them. She considered that in light of her risk assessment of the Applicant’s future spousal assault or engagement in other forms of domestic violence, forced separation due to deportation was the greater risk currently facing the children. Dr Yoxall did not offer any opinion as to the psychological impact to date on the children of the repeated aggressive and violent interactions between the Applicant and KF.
Dr Yoxall also opined that the impact of the Applicant’s deportation on KF would be substantial as she would lose her co-parent and would be left trying to support their children through ongoing traumatic loss. She said it was likely that KF would be, “extremely negatively impacted” by his deportation and this would have its own ripple effect on the children.[35]
[35] Ibid, page 233.
Dr Yoxall said that the Applicant’s ties with Australia were very strong, as he had grown up, been educated, and worked in Australia. He has three Australian children and is very close to his Australian friends, parents and siblings including his younger sister. She further reported that whilst the Applicant had an elderly maternal grandmother living in New Zealand, he otherwise had limited ties to New Zealand, and that given his vulnerability to depression, forced separation from his children would be the two most significant difficulties in establishing a stable life there.
Other Evidence
The Applicant also provided a letter[36] from the Queensland Government Department of Child Safety, Youth & Women, dated 29 March 2019, which reported that the Applicant’s children were not in need of protection.
[36] Ibid, pages 244 to 245.
The Tribunal also has before it a handwritten “Heads of Agreement”, dated 9 January 2019, signed by the Applicant and KF which specified the child-care arrangements.[37]
[37] Ibid, page 246.
The Tribunal has had regard for a Protection Order[38] made in the Magistrates Court at Southport on 25 October 2018, and which was made following a Temporary Protection Order made on 8 February 2018.[39] The Tribunal also has before it a copy of the Application for a Protection Order[40] which was made in respect of the incident which occurred on 4 February 2018. KF was named as the aggrieved, and the Applicant as the respondent. Extracts of the grounds for that order follow:[41]
[38] Ibid, page 247.
[39] Ibid, page 248.
[40] Ibid, pages 267 to 273.
[41] Ibid, pages 269 to 270.
On the 4th day of February 2018 both the respondent and aggrieved were at [an address]. The two parties have become involved in a verbal argument over the respondent wanting to have sexual intercourse with the aggrieved in the bedroom of the dwelling. Both parties were yelling at each other. During the argument the respondent has approached the aggrieved and said “get out of my face”. The aggrieved has replied “what are you going to do about it?”.
It was at this time when the respondent has grabbed the aggrieved around the neck with both his hands and squeezed causing the aggrieved to nearly black out. The aggrieved could not breathe or scream for help. The aggrieved has attempted to free herself by pulling the respondent’s hair. The respondent let go after approximately 20 seconds. The respondent has thrown the aggrieved onto a nearby bed.
The aggrieved has gotten back off the bed and both the respondent and the aggrieved have continued fighting. The respondent has grabbed the aggrieved by the neck with both hands and forced her up against the wall. The aggrieved has freed herself and attempted to make a phone call. The respondent grabbed the phone out of the aggrieved’s hand and thrown the phone out of the room. The respondent has threatened the aggrieved and said “I’m going to fucking kill you, I’m going to fucking kill you”.
The aggrieved has run out of the bedroom, picked up the phone and ran into the kitchen. The aggrieved has armed herself with a knife and attempted to call 000, however has accidentally dialled her father. The respondent has followed the aggrieved to the kitchen. The respondent as grabbed the phone out the aggrieved’s hand and thrown it onto the kitchen floor causing the screen to smash. The respondent has grabbed the knife out of the aggrieved’s hand. It was at this time where the respondent has thrown the aggrieved to the ground, held the knife to the aggrieved’s throat and said “I am going to kill you, don’t fuck with me.”
The aggrieved has started screaming. The aggrieved’s father arrived at the address and the altercation ended. On the fifth day of February 2018, the aggrieved attended [an address] to collect her children from the respondent. It was at this time where the respondent has again become verbally abusive and started throwing items out the front of the address. The respondent’s mother has threatened to assault the aggrieved.
The respondent has grabbed one of the children’s toys and walked to the aggrieved’s vehicle and damaged the side of the vehicle causing dents and scratches.
The aggrieved has collected her children and driven to the Coomera Police Station to report the incident. Police took photographs of the damage caused by the respondent and version from her. Police observed a scratch mark under the aggrieved’s neck.
When spoken to the respondent stated the incident had started with the aggrieved attacking him and pulling his hair. He said the aggrieved pulled out a knife and held it towards him and, in self-defence he grabbed the aggrieved swung her around and ended up behind her holding her in a “bear hug” and the knife ended up touching her neck while still in her hands.
Police believe that it is desirable and necessary for an order to be made to protect the aggrieved from the respondent due to the very serious nature of this incident. The aggrieved stated that both her and the respondent are constantly arguing. Police believe that due to the two parties being young and already having three children together, there will continue to be in contact in relation to the children and therefore domestic violence will continue to occur. There has been a knife presented to the aggrieved, threats to kill the aggrieved, and the respondent committed the offence of strangulation. Police believe that the aggrieved is in need of protection and believe a DV order is the correct outcome.
[Tribunal redactions and bolding for emphasis]
All three of the Applicant’s children were included in the order made by the Court on 8 February 2018, and the Applicant (the respondent to that application) was present in Court when the order was made.[42]
[42] Ibid, page 248.
Almost twelve months to the day later, and in breach of the then-current Court order, the Applicant committed the grievous bodily harm against his ex-partner, which led to his visa cancellation. Excerpts from the Statement of Facts[43] provided to the sentencing judge include the following:
[43] Ibid, pages 291 to 293.
On 3 February 2019, at approximately 3:00pm, the complainant finished work and drove to the defendant’s house in Hope Island. The defendant lived with his parents. She picked him up so they could go grocery shopping together. The children were at the defendant’s house being supervised by the defendant’s father.
The complainant and defendant attended a supermarket in Hope Island. As they were leaving, they had an argument. There was screaming at each other. They drove to the complainant’s house to drop off the groceries prior to picking up the children from the defendant’s parents’ house. By the time they got home, there was less tension between them, so the complainant invited the defendant into her house to help unpack the groceries.
The complainant went into her bedroom to put some beauty products away. She knelt on the ground. The defendant approached her and punched her to the right side of her head (Count 1).
The complainant could not remember much following the assault. She ran to her car. However the defendant chased her. She locked the car doors while the defendant was at the car windows.
The complainant drove to her father’s house. Her father transported her to the Gold Coast University Hospital.
Injuries
At about 7:19pm, the complainant was seen by a doctor in the emergency department. Her mouth was bleeding and she was unable to close her mouth. There was obvious disruption of the gum and teeth. The doctor ordered morphine and a CT scan of her face, which revealed a bilateral mandibular fracture. She was referred to the on-call oral and maxillofacial Surgeon. She also had bruising to the right side of her neck tracking down.
The surgeon observed the complainant had both a right mandibular parasymphyseal fracture as well as a left mandibular angle fracture. There was a malocclusion and the complainant could not bite on the left side.
On 5 February 2019, the complainant underwent surgery. Her surgery consisted of incisions inside her mouth on both sides, a small incision through the skin of her left cheek, removal of her left wisdom tooth, reduction of the fractures and fixation with titanium plates and screws. Sutures were placed. She underwent further x-rays, was prescribed antibiotics and strong pain medications and was required to undergo a 4 to 6 week purée diet.
If left untreated she would not be able to eat adequately, her lower jaw would remain disfigured and she would likely develop a severe infection.
On 6 February 2019, the complainant was discharged from hospital.
Additional detail was recorded in the Queensland Police Service Court Brief in respect of this incident, excerpts of which are as follows:[44]
At approximately 4:30pm, an argument broke out between the victim and defendant while they were standing in the victim’s bedroom. The defendant punched the victim with a closed fist to her mouth which immediately knocked her to the floor and caused extreme pain. The defendant then held the victim to the floor by her throat causing her to have loss of breath. The defendant continued punching the victim to the face with a closed fist. The victim attempted to fight back but was unable to hit the defendant.
The defendant has then released the victim and she has managed to get up and go downstairs to her car. The victim was bleeding heavily from the injuries to her mouth. The defendant followed the victim down to her car and tried to enter it, however the victim managed to drive from the address to her father’s house a few hundred metres down the road.
The victim’s father, witness [redacted] drove the victim to the hospital at which time police were contacted and attended. The victim sustained a broken jaw, displaced teeth and redness to her neck. The victim disclosed to nursing staff that the defendant had strangled her and held her down by the neck.
Upon arrival at the hospital, nursing staff informed police that the redness and marks to her neck are consistent with strangulation. Police were initially unable to speak with the victim due to her injuries but later obtained a digital version of what had occurred. …
On 4 February 2019, the defendant was located at his parents’ address… At which time he was arrested and charged in relation to the Breach of DV, Grievous Bodily Harm and Strangulation offences.
[Tribunal bolding for emphasis]
[44] Ibid, page 299.
References from relatives and friends
The Tribunal has had regard to statements from: the Applicant’s grandmother, Joyce Raharuhi;[45] sister, Nadia Raharuhi Te-Huia;[46] friends, Suzanne Scott,[47] Rochelle Stewart,[48] Brodyn Christison[49] and Megan Snowling;[50] neighbour, Courtney Buchanan;[51] employer, Lachlan Finnie;[52] brother, Taame Raharuhi;[53] father, Gordon Te Huia;[54] his ex-partner’s sister (referred to as “DF”);[55] mother, Karen Raharuhi;[56] aunt, Christine Ann Butler;[57] uncle, Clive Raharuhi,[58] as well as the various photographs of the Applicant and his children.[59]
[45] Ibid, page 317; Exhibit R2, Summonsed Documents, SM1, pages 76 to 77.
[46] Exhibit R1, Section 501G Documents, G2, page 319.
[47] Ibid, page 321; Exhibit R2, Summonsed Documents, SM1, pages 82 to 83.
[48] Ibid, page 323.
[49] Exhibit R2, Summonsed Documents, SM1, page 90.
[50] Ibid, page 91.
[51] Exhibit R1, Section 501G Documents, G2, page 325.
[52] Ibid, page 327; pages 350 to 351; Exhibit R2, Summonsed Documents, SM1, page 87.
[53] Ibid, page 330; page 345; Exhibit R2, Summonsed Documents, SM1, page 73.
[54] Ibid, page 332; page 349.
[55] Ibid, page 334; pages 340 to 341.
[56] Ibid, page 336; page 342; Exhibit R2, Summonsed Documents, SM1, page 69.
[57] Exhibit R2, Summonsed Documents, SM1, page 79.
[58] Ibid, page 85.
[59] Exhibit R1, Section 501G Documents, G2, pages 352 to 386.
Together, these statements painted a very positive picture of a popular and devoted working father from a close-knit family, eager to continue a positive role in his children’s lives (with whom he enjoys good relationships). A man who enjoys the support of the various authors, has made some poor choices, struggled with mental illness and substance misuse, and has shown commitment to counselling. A number expressed concerns about the impact of the Applicant’s deportation on his ex-partner, their children, his wider family, and friends, as well as his own mental well-being. Other statements spoke to the already adverse impact on the children which his separation, owing to prison and detention, has caused.
The Tribunal has also had regard for a letter,[60] dated 6 October 2020, from the Queensland Government Department of Corrective Services Borallon Training and Correctional Centre. This recorded that the Applicant had not been involved in any incidents and had not been subject to any urine analysis tests whilst in custody. It also recorded that he had not been employed, nor had he completed any education or rehabilitation courses during this period. He had also not received any visits from his family. The following was also recorded:
Alerts: Mr Raharuhi Te Huia does not have any psychiatric alerts. It is noted that he reported a five month period (December 2018 to April 2019) where he attempted suicide on five separate occasions. He reported for overdoses on prescription medication over this time, each of these resulted in hospitalisation. Additionally, Mr Raharuhi Te Huia reported that in March 2018 he drove at high speed into a tree. He reported that all suicide attempts were in the context of relationship breakdown and being prevented from seeing his 3 children.
[Tribunal bolding for emphasis]
[60] Ibid, page 49.
Applicant Evidence at Hearing
The hearing took place via video link on 17 and 18 February 2022, respectively. Ms Jennifer Samuta (from Samuta McComber Lawyers) appeared for the Applicant and Mr Kyu-Won Kim (from Clayton Utz) appeared for the Respondent.
Ms Samuta initially conceded that the decision to cancel her client’s visa was lawfully made, and that the Applicant had a substantial criminal record, thus not satisfying the character test. As such, the sole issue for the Tribunal to determine is whether there is another reason that the discretion under section 501CA(4) should be exercised.[61]
[61] Exhibit A1, Applicant Statement of Facts, Issues and Contentions, page 3, paragraphs 4 to 8.
Evidence of the Applicant
The Applicant gave evidence that he was born in New Zealand in 1996 and arrived in Australia in January 2010, at the age of thirteen, with members of his immediate family. He is presently 25 years of age. He attended high school until Grade 11, and then went to TAFE, completing a Certificate II in boat building. He then worked full time car detailing for a period of between two and two and a half years, following which he worked building boats for about three years. After he left that job, he worked at Paradise motor homes fibre-glassing for about one year. He left because his mental health began declining. He had severe depression and anxiety and struggled to come out of his bedroom and, “went downhill.”[62]
[62] Transcript (17 February 2022), pages 5 to 6.
The Applicant gave evidence regarding his children, KY (aged six), and twins, KL and IZ, all of whom are Australian citizens, as is their mother, KF. The Applicant stated that his relationship with KF started around 2012 or 2013 when he was about sixteen years old. It was initially good, but it had ups and downs, later becoming toxic. They began bickering over little things; regularly splitting up and reconciling. As the Applicant described it, the relationship was, “all over the show.”[63]
[63] Ibid, page 6, lines 39 to 45; page 7, lines 1 to 2.
The Applicant and KF each have protection orders against the other. The latest order against the Applicant arose from the charges which led to his visa cancellation. The protection order against KF arose from a visit by her to the Applicant’s mother’s place.
The Applicant said that he still did not recall what happened during the incident of 3 February 2019 when he broke KF’s jaw.[64] He said he only remembers waking up in the watch house; that he could not believe what he had done and that he had broken down when he found out. He said that he was heavily intoxicated with pharmaceutical drugs and was not sure if he had taken anything else. He said that he had picked up a script for anxiety medication that day (prescribed after he took himself into the psychiatric ward) and that he had taken more medication that he was prescribed prior to meeting with KF. The bottle had been full when he picked it up and had been empty when found. He said he understood the allegations against him and took full responsibility for his conduct. His understanding of the allegations was based on what he had learned from others, not his own recollection. He said his conduct makes him feel worthless; that he became suicidal after reading about it and expressed strong remorse.
[64] Ibid, page 7, lines 24 to 44.
He said that he contacted KF immediately after being granted bail and released, resulting in his subsequent arrest and incarceration for a week for breaching this condition of his bail.
His relationship with KF ended in 2017 or 2018, but he remained in contact, by agreement, to help financially (i.e., paying for groceries, etc.). He stated that they both know there will be no resumption of a relationship, but they want to co-parent. He does not believe that there is any risk that he will hurt her again.[65]
[65] Ibid, page 9, lines 4 to 9.
He was on bail for about eighteen months prior to being sentenced, during which time he lived with his parents and was employed for a year as a house painter. He also undertook rehabilitation every week or two, subject to its availability.[66] He stated that he is planning on seeing a psychologist and not abusing drugs in future.
[66] Ibid, lines 41 to 45.
The day after he was released, he called her and they both cried. Her mother had told her to hang up, and he rang her 20 or 30 times, and he was arrested for breach of bail and spent a week in custody. He was subsequently granted bail again, which he remained on for about a year and seven months, during which time he lived with his parents. He also worked during this period, ceasing his previous job, and taking up house painting with Precision Paints. He could not get into rehabilitation because of his outstanding charges. Dr Sam Aung and Elenora were the doctors he saw weekly, or fortnightly. He learned about breathing and meditating to control his breathing and prevent hyperventilation.
The Applicant said he only had the one breach of his bail which he was charged with after repeatedly calling her after he was released. He did not recall any further breaches. The protection order was on foot while he was on bail and he said he did not breach it. He had no prior convictions or sentences and had not been to prison before. He served three months in prison before being admitted to court ordered parole. The Applicant stated that he did not do any rehabilitation owing to lockdown and not being allowed out of his cell for between the first month and six weeks. After the lockdown ended, there were no courses, but he consulted a prison psychologist as his anxiety increased while he was in prison.
The Applicant said he is definitely not going back to prison.[67] When he was released, he immediately went into immigration detention. For the first two to three months’, he did courses in drug and alcohol and anxiety but had to stop because of COVID-19 restrictions. He said the courses were good, that seeing other people was a real eye opener for him, and that he was glad he had done them.[68]
[67] Ibid, page 11, lines 7 to 8.
[68] Ibid, lines 24 to 25.
If he were released into the Australian community, the Applicant stated that he will be returning to work and looking after his children. He wants to do a domestic violence course and continue seeing a psych so that his mental health so that he does not ever go back downhill again. He wants to keep up his fitness, which has also really helped him.[69]
[69] Ibid, lines 39 to 41.
He stated that his family is his biggest support, and he has good friends around him, such that he has, “a lot of support out there.”[70]
[70] Ibid, lines 46 to 47.
The existing shared custodial arrangements regarding the children mean the Applicant has responsibility for the children for about half of each week, Thursdays to Sundays, and this will continue if he were released. He stated that he would do all sorts of things with them to keep them occupied, such as trips to a park, bike rides, the beach – anything to have fun.
The Applicant said that his children were his best friends. KY was like his twin. He supported them financially, with kindergarten fees, food, clothing and toys and their general needs. He provided KF with money, or Coles’ gift cards, for when the children were with her. When he went to prison, he told the children he was going away for work. He feels like his older daughter knows that was a lie, but he does not want to break her heart.
The Applicant said that he talks to the children all the time, nearly daily. They constantly ask when he will be home, and he tries to change the subject. He can tell they are hurting. His son has been playing up behaviourally and the Applicant believes he needs a male figure to remedy this.
If he must return to New Zealand, the Applicant stated that he is concerned that he would only get to see his children once a year and that they will have behavioural or attachment issues as they would feel he has abandoned them, or he doesn’t want to see them. He feels it will have a massive impact on them. Financially it would be difficult for him to see them. One of his parents would have to fly over with the children, and visits could only occur in the school holiday breaks. He thinks KF would let the children travel to New Zealand to visit him, but not all the time because of the expense, and probably not to live there full time.
After he was charged, the Applicant’s children lived in Townsville for a couple of months with their maternal grandmother, and he did not get to see, or talk to them at all whilst the children were being assessed to see if foster care was needed. His mental health deteriorated during this period.
When the children came back from Townsville, the shared custody arrangement commenced. If released into the community, the Applicant says that he will live with his parents and little sister, N, aged sixteen, at his parents’ home. He is, “super close” to N, whom he descried as a, “mini-me”. He said that she knows where he is now and will be, “bummed out” if he is deported.[71]
[71] Ibid, page 14, lines 35 to 47; page 15, lines 1 to 13.
His other family in Australia comprises his brother and his wife, with two kids – A, aged eight and AL, aged four – as well as a couple of uncles, aunties, and cousins. The Applicant said that he thinks that his brother’s children will be impacted by his deportation because they lived close by and used to do a lot of things together.[72]
[72] Ibid, page 15, lines 24 to 29.
He stated that his parents will be heartbroken if he is deported, as they are a really tight family. They would not see too much of each other.
The Applicant said he does have family in New Zealand, but the only one with whom he is really close to is his elderly nan. He also has a job ready to go in Australia with his former employer, Precision Painting. No work has been arranged in New Zealand for the Applicant and as such, his future there is financially shaky, with the Applicant not really prepared to go back. He said that his mental health will take a hit being away from his children and family and that he will need mental health care if he were to be deported.
Cross-examination
Under cross-examination, the Applicant confirmed that his abuse of pharmaceutical drugs led to his assault on KF. He stated that he is on drugs for anxiety and depression which don’t give him a, “high”. They are different from prescription drugs he had previously taken, and he blamed, “the benzos” for his problems.[73] He said that he used to smoke marijuana heavily, starting when he was around fifteen or sixteen years old at parties, smoking recreationally, becoming more frequent, eventually every day. After the birth of his first child, his use became more sporadic. He had used MDMA once when he was eighteen. That was the extent of his drug use.[74]
[73] Ibid, page 16, lines 46 to 47.
[74] Ibid, page 17, lines 8 to 29.
The Applicant started abusing pharmaceutical drugs when he got severe depression and anxiety. He, “would just eat them and eat them to feel sort of numb”.[75] He started abusing his medication when he found out that KF was seeing someone else. He started getting very suicidal and he overdosed a couple of times. The Applicant was hospitalised, and his drug abuse worsened, from around 2018 to 2019.
[75] Ibid, lines 31 to 35.
The stress of the relationship with KF caused him to abuse the pharmaceutical drugs. After he overdosed in mid-2019, he realised he needed to get his life back together.[76]
[76] Ibid, page 18, lines 22 to 35.
The Applicant stated that he does not really recall the overdose episodes. The first time he overdosed, he wrote a note and left it on his phone beside the bed. His mother came into his room and found him foaming at the mouth. The next time he overdosed, she found him and induced him to vomit. These incidents were in 2019, but he was unsure of the specific timeframe.[77]
[77] Ibid, page 19, lines 4 to 5.
The Applicant was referred to an Incident Detail Report[78] regarding two plastic bottles of unidentifiable liquid which were deemed contraband.[79] The Applicant said that he was, “in the wrong place at the wrong time.” There were five or six people in the laundry area with a bag of home-made alcohol in the corner - he was guessing that others were making it. They had moved it there because rooms were being searched, and to make identification of the owners of the contraband liquid more difficult. He went there to retrieve his laundry. He denied ever having alcohol in detention and said he does not like alcohol. He has only used his own prescribed drugs in detention.
[78] Exhibit R1, Section 501G Documents, G8, page 477.
[79] Transcript (17 February 2022), page 21, lines 14 to 46; page 22, lines 1 to 31.
The Applicant was referred to a further Incident Report[80]regarding methamphetamine and fentanyl being found in a small bag. There were twelve detainees in the unit who were all outside at the time when something was thrown over the fence. The Applicant was with the group when things were being thrown over the fence and as such, they all were disciplined.[81] He denied picking the contraband up and said that he had never picked up anything but agreed that he had been identified as involved in this incident.
[80] Exhibit R1, Section 501G Documents, G8, page 481.
[81] Transcript (17 February 2022), page 23, lines 30 to 31.
The Applicant was referred the Check Results Report.[82] He accepted that he had committed, been found guilty and convicted of the offences listed. He was Judge Kent QC’s sentencing remarks.[83] He said that he had not seen the remarks before. Upon reviewing them, he agreed that it was an accurate summary of what transpired. He accepted that he had caused the damage as recorded. He accepted that he had breached his bail conditions by ringing KF 40 times on one day.[84]
[82] Exhibit R1, Section 501G Documents, G2, page 39.
[83] Ibid, page 41.
[84] Transcript (17 February 2022), page 24, lines 30 to 65; page 25, lines 1 to 4.
The Applicant was then referred to the 2018 application for the protection order against him, as well as the excerpt describing the circumstances which gave rise to it,[85] stating that he had seen it before and recalled what happened that day. However, he recalled events differently, stating that things had been, “twisted a little bit.”[86]
[85] Exhibit R1, Section 501G Documents, G2, pages 269 to 270.
[86] Transcript (17 February 2022), page 25, lines 31 to 32.
Apart from his holding the knife to her neck, the Applicant agreed that “most of it [the domestic violence incident] was all sort of in there”. He substantially accepted the events of 4 February 2018. The incident occurred whilst the Applicant had been holding his daughter who was two years old at the time.[87] He specifically denied that he had grabbed KF around the neck and squeezed, or that he had made threats to kill her. He said that the report to the police was made two days later, out of hatred, after another incident at his mother’s home.[88]
[87] Ibid, page 26, lines 1 to 2.
[88] Ibid, lines 9 to 22.
The Applicant said that he could not say how many times they had broken up and reconciled. He would try to pack his things to leave, and she would calm down the next day, and apologise, or vice versa. The motivation to reconcile was the wellbeing of children and there was a big pattern of breaking up and reconciling for their sake.[89] He denied that the argument started over his request for sexual intercourse. He said the argument started because they were out of marijuana. Their present relationship is that they are on good terms, but don’t speak often.[90]
[89] Ibid, page 27, lines 14 to 37.
[90] Ibid, page 28, lines 1 to 3.
The Applicant and KF did not meet in the period after the assault. The last time they had a sexual or romantic relationship was before the charges. He accepted that the protection order was made after the incident in February 2018, and that he understood that there was to be no contact at all between them.
Despite this, the Applicant continued to have contact with KF and the children following the incident in February 2018. He continued to care for the children during this period, even though the children were also named in the order, and he was prohibited from going within 100 metres of their homes, or where they were located. He understood that he and KF could agree in writing to vary contact with the children.
The Applicant said that he undertook specialist care about fifteen times for approximately a year, attending regularly, until he returned to work. The sessions focussed on anxiety and depression, and his charges. Dr Sam Aung and his mother controlled his medications, as a precaution to stop any chance of him overdosing.
The Applicant maintains contact with the children every day when they are with his parents, and intermittently when they are with their mother. He knows the Protection Order is in force until 24 October 2022. His contact arrangements are recorded in a written agreement with KF.[91]
[91] Exhibit R1, Section 501G Documents, G2, page 246.
If he is deported, the Applicant stated that he could maintain his present telephone contact arrangements and remain in touch with his children. He confirmed that he has about ten aunties and uncles, and his parents’ friends in New Zealand, but that he is not close to them. He is close to his Nan, but she is getting old, and he said that were he to be deported, he will essentially be on his own.
The Applicant said that he is in relatively good health and was thirteen when he left New Zealand. He has limited Maori language, but good English language skills.
Re-examination
The Applicant told Ms Samuta that his stress had increased, but his mental health was still pretty good. The last time he abused drugs was a few months after February 2019, nearly three years ago.
When asked about the incident regarding the picking up of a contraband item thrown over the fence in immigration detention, he denied picking up the item referred to. He said he has not taken any illegal substances in detention.
He accepted that, on 4 February 2018, he was involved in a verbal argument, but disagreed that it stemmed from KF’s refusal to have sexual intercourse with him. He agreed that he and KF were yelling, and that he told her to get out of his face but denied grabbing around her around the neck in both instances. He also denied grabbing her phone and throwing it, and said he threw a knife. He went on to deny threatening to kill her, holding a knife to, or scratching, her neck.
He understood that the written agreement regarding access to his children meant it was legal for him to see the children, only in accordance with its terms. He stated that he and KF weren’t sure their contact was breaching the order and just kept it, “hush[ed]”. In 2019, they entered a written agreement regarding shared custody.[92] There was one written agreement prior to that, and he believed his mother had possession of it.
[92] Ibid.
Evidence of Karen Raharuhi – Applicant’s mother
Mrs Raharuhi gave evidence by telephone that she had previously provided the written statements to the Tribunal.[93] She said the Applicant was a loving, loyal, respectful, and happy-go-lucky person. He was an amazing father for all his children from birth and had cared for them from the time they were born. His children adored him, and he had been on the phone to them every weekend since his incarceration. He also interacts with them over Facetime. She and her husband collect the children on Thursdays, every week and help KF out. The children always wanted to be with their father. He did everything that a good dad does.
[93] Ibid, page 336; page 342.
The Applicant’s mother said that KF needs help, and she and her husband have stepped into the father’s role in the Applicant’s absence. She said that if the Applicant does not come home, they will continue to have behaviour issues with the three children. They maintain the financial support he had provided to KF. She is scared about how the children will be affected by his deportation. She described KY as very reserved; KO as crying for, and asks to ring, her father and IZ, as getting angry, wanting to know when his father is coming home. She said that missing their father has taken a big toll on them, as he has been a big part of their lives. The children can spend two hours on the phone with the Applicant. They think their father is coming back and are planning for his return. They will be the three little victims of his potential deportation. She stated that she and her husband are getting older, and want to be grandparents, not parents again.
She and her husband rent a big house where the twins were born, and they all moved in together. The Applicant used to contribute to $250 per week towards rent and would also contribute toward food expenses. They now carry this burden, as well as his legal costs, which has been a struggle. She stated that she and the children could visit the Applicant in New Zealand, but that would be a big financial burden. KF is also not in a financial position to contribute towards that cost. They would be able to facilitate visitation, but the children will not get to see their father as much.
The Applicant had asked her what happened when he was released from the watchhouse. A psychiatrist had told her that when people overdose, they do not remember what happened, and it was like being under anaesthetic.
After the Applicant’s first child was born, she saw his mental health deteriorate, and he overdosed, subsequently being admitted to hospital of his own volition. She said her son has the support of his family and will need counselling. His boss is looking forward to him returning to work.
Mrs Raharuhi said her daughter, N, is now seventeen and is very affected by her brother’s visa situation. She always looked up to him and idolised him. She said that their family is not going to be the same – they have all been affected severely. They were blown away by his offending as he was very respected in the local community and at school, where he helped a special needs boy who was being bullied. He is not violent and is not a horrible person. Rather, she described him as having a beautiful nature.
She is concerned how he will deal with not having his children, as the Gold Coast is his home, and he does not want to leave his three children. She thinks he could go downhill with his mental health were he to be deported.
Cross-examination
Under cross-examination, Mrs Raharuhi said she was born in New Zealand and came to Australia in 2010. Her elderly mother, aged 80, and her brother continue to live in New Zealand. She has cousins there but is not close to them. They have lots of relatives in New Zealand, but don’t have much to do with them. She last visited in March 2020 for her father’s funeral. She state that were the Applicant to be deported, they would be able to visit him in New Zealand.
Re-examination
There was no re-examination of this witness.
Evidence of KF
The witness, KF, gave evidence via telephone and confirmed her statutory declarations before the Tribunal.[94]She said that the Applicant is a very loving father who is always there for the children. He is a good role model and a very involved father. He played a massive part in the children’s lives two to three nights per week. Before he went to prison there was a verbal parental arrangement for him to have the children from Thursday nights until Saturdays. She recalled a signed agreement but was not sure if it was a legal document.
[94] Exhibit R1, Section 501G Documents, G2, page 131; page 134.
KF said they had had a, “messy situation” where the Applicant withheld the children from her, and the Magistrate required that they sign an agreement. She had agreed to him having the children two nights per week. They were well cared for when he had them. The children were always in clean clothes, had full bellies and had positive things to say about their time with their father. He financially supported them by splitting clothing bills and school fees and always bought things for them at his house.
If he remains in Australia, she said they have agreed that they will share custody 50/50, and this will be an agreement just between themselves. She stated that they have moved on from the nasty and horrible things that have happened in the past and have a good relationship for the sake of their children. The child, KY, has been impacted a lot, as they all have. She struggles with abandonment issues and separation anxiety. KO is the same and has bad separation anxiety and other anxiety issues. She goes to sleep crying and gets very emotional talking about her father. IZ has been affected more behaviourally and acts out a lot.
KF stated that she grew up without her father and is concerned about the effect on their children. She believes that they are too young to go to live with him in New Zealand but might be able to in the future. She would prefer for him to stay here as this most benefits the children.
She is the only victim of his criminal offending. She said he is not a violent, mean, or aggressive person, instead that he was pushed and abused by her a lot and one day just, “snapped”. She pushed him, and it got worse when she got post-natal depression. KF stated that she needs to be held accountable for many of their issues and believes the Applicant has shown true remorse. He is a very loving and supportive person, happy go lucky and always positive. He also abused his medication, but she feels he was pushed to that point.
KF clearly stated that she does not fear for her future safety because of him. Most of their child custody arrangements will be done at his parents’ house. She would not go near his house and he would not go near hers. They are on good terms now. She said that the Applicant’s removal from Australia will financially and mentally impact her, which will mean she will have to continue two jobs to support the children. He would also not be present to mind the children.
Cross-examination
KF could not recall if her and the Applicant had a written parenting plan and said that she does not have a very good memory. Regarding the February 2018 incident, which led to the protection order, she could not recall specifics because it was very traumatic for her and she has blocked a lot of it out of her memory. She was read extracts of the events of the day, and the fact that he had grabbed her neck with both his hands and squeezed. She recalled the incident and confirmed these were the facts which she reported to police. She could not tell Mr Kim particular details of what happened because it was so long ago. She stated that somebody would have hit somebody and that she recalled being strangled. There had previously been lots of pushing and shoving for about six months but nothing of that severity.[95]
[95] Transcript (17 February 2022), page 56, lines 17 to 42.
Regarding the incident in 2019 which led to his subsequent arrest, she remembered that they had argued whilst shopping, and that when they returned to her house the Applicant had taken his prescribed medication and that she was ‘king hit’ from the side. At this point in her evidence KF became emotional and said she had no recollection of her three-month recovery process as it was traumatic. She stated that she had not provoked him and that they were just yelling at each other prior to the assault.[96]
[96] Ibid, page 57, lines 5 to 16.
KF stated that she would allow the children to visit him if he is deported and to speak to him whenever they wanted, within reason.[97]
Re-examination
[97] Ibid, lines 20 to 24.
KF stated that she could not remember the entire episode of her strangulation. The only reason she could recall the details now was because she recalled being in the police station having photos of her neck taken. She said the police took pictures of her neck because she was strangled. She could not remember a knife being used in the altercation.[98]
[98] Ibid, page 58, lines 6 to 14.
From the time the Applicant went to prison, the parenting plan was not in effect. If he were to be released, KF stated that she would make a 50/50 arrangement with him.
Following re-examination, the witness was unable to tell the Tribunal how many times she had been hit as she did not remember anything after the first hit and did not recall being strangled. She stated that the police went by what they found on her body (i.e., marks).[99]
[99] Ibid, lines 40 to 47; page 59, lines 1 to 4.
Closing submissions - Applicant
In her closing submissions, regarding Primary Consideration 1, Ms Samuta conceded that the Applicant’s offending and conduct to date is serious given the sentence of imprisonment imposed. She further conceded that the violence was committed against a female victim, and that offending was committed in the context of family violence.
Ms Samuta submitted that there was a salient feature in this case, and that the Applicant had no prior criminal history. His only criminal history in Australia was that committed between the four days, between 3 and 7 February 2019. She submitted that in view of this, it could not be said that the Applicant has any frequency or cumulative effect to his offending conduct to date.
Ms Samuta further submitted that whilst the gravity of the offending is very serious, particularly the injuries inflicted on the victim, the Applicant was remorseful and had taken accountability, but there were mitigating factors. These included his mental health, and his severe impairment of judgement and decision-making at the time of offending, resulting from his intoxication from pharmaceutical drugs.
Ms Samuta submitted that this was not an attempt to excuse his offending, but rather that it was committed in a particular context. Firstly, his prior, toxic, and volatile relationship, which was corroborated by the cross-protection orders.
Ms Samuta submitted that there were various protective factors in terms of reoffending, and these have been outlined by the sentencing judge. The Applicant’s young age, his prior good character and work history, timely guilty plea, and remorse for his offending, as well as the context within which the offending occurred and the fact that since his offending, the Applicant’s medications have been adjusted and he has been compliant and benefited from mental health treatment.
It was submitted that the mitigating factors were sufficiently powerful so the sentencing judge preferred that he be released from prison at the shortest possible time. This was far shorter than the normal one third of sentence which would have been customary for someone in his position.
Ms Samuta said the Applicant submitted that he was of low risk because he’d been receiving regular treatment from professionals including psychiatrist Dr Roy, and his treating general practitioner. He had also been receiving counselling from a psychologist. He had engaged in rehabilitation programs when able to and had received counselling from psychologist in prison. He had expressly stated that he would continue treatment as he now understood what was required of him to ensure sufficient interventions in the future.
Ms Samuta referred to Dr Yoxall’s report, and her assessment of his overall risk to the Australian community as and his risk of violent offending against other family members as extremely low. She conceded that overall, this consideration may weigh against revocation, but not of itself or cumulatively outweighing the considerations in favour of exercising the discretion, particularly the best interest of the Applicant’s children, the impediments of his return to New Zealand and his significant ties to Australia.
Regarding Primary Consideration 2, Ms Samuta conceded that that the conduct engaged in by the Applicant constituted family violence for the purpose of the Direction. The Applicant had accepted responsibility and had expressed genuine remorse and insight into the impact of family violence on his victim. He had engaged in pertinent and relevant rehabilitation which included medical professionals, psychiatric, psychologist and a treating General Practitioner. He was intending on re-engaging with the necessary professionals upon his release.
An overall consideration of paragraph 8.2 of the Direction weighs very heavily against revocation.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
In accordance with Article 3 of United Nations Convention of the Rights of the Child,[114] a decision-maker should treat the best interests of any child under eighteen as a primary consideration. This is in line with paragraph 8.3 of the Direction.
[114] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Paragraph 8.3(4)(a) requires the Tribunal to consider 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).
Ms Samuta submitted, and the Tribunal accepts, that the Applicant’s three children are relevant to this consideration. However, the Applicant’s younger sister, N, who is presently seventeen years of age will also be impacted by this decision. She will soon be eighteen and should be able to visit the Applicant in New Zealand should she wish to.
The Applicant’s nephew and niece may also be impacted to some degree, but there is insufficient evidence before the Tribunal to allow it to elaborate further in this regard.
The Tribunal accepts the evidence that the Applicant has played a prominent role in his own children’s lives prior to his incarceration and has continued to do so (to the extent that he has been able during his incarceration and time in immigration detention). The Tribunal also accepts the evidence that there has already been a negative impact on the children since their separation from their father, and that they are expecting him to return into their lives.
The Tribunal further accepts that the Applicant has been heavily involved in his children’s lives since the respective births, and has provided practical, financial and emotional support to them, as well as to KF, also benefitting the children.
The Tribunal also accepts that given the opportunity, the Applicant would do his best to be an involved, positive father for the remainder of their respective childhoods, and that there is no evidence to suggest that they have been physically at risk from his conduct.
The Tribunal also accepts the evidence of Dr Yoxall that the Applicant’s deportation could be psychologically catastrophic for the children. However, she also opined that their exposure to family violence could also be catastrophic for the children. There is no expert evidence before the Tribunal so as to allow it to evaluate the extent to which they have already suffered from such exposure. It is difficult to escape the conclusion that observing frequent confrontations, often involving knives, would not already have impacted on the children. Likewise, having a mother who continues to suffer PTSD and flashbacks, and who was required to have her mouth wired shut for a period of four to six weeks whilst she lived on a pureed diet, would probably have already had some adverse impact on them, as would the subsequent prolonged separation from their father.
The Tribunal accepts that separation from their father has already psychologically impacted the children to some degree, and that their presence during episodes of family violence has probably also adversely affected them, even though they have not been the targets of that violence. The Tribunal also accepts that the Applicant’s role in the lives of his children has been significantly diminished during his absence occasioned by incarceration and immigration detention. The Tribunal acknowledges that the Applicant’s parents have nobly stepped into his shoes during this period, to the extent that they have been able.
The Tribunal also accepts the evidence of KF that she would be cooperative in facilitating contact between the Applicant and his children (subject only to financial constraints) were he to be deported. This would include physical visits to the Applicant in New Zealand, most likely in company with either, or both children’s grandparents.
The dilemma for this Tribunal rests in the fact that if the Applicant remains in Australia and commits further serious episodes of domestic violence against KF, with potentially serious and even fatal consequences, the outcome for the children might be even worse than were he to be deported to New Zealand.
The children are of tender years, and the Tribunal considers that their best interests are served by having a mother who can go about the business of raising them as best she can, with minimised risk to her own safety and well-being.
Conclusion: Primary Consideration 3
Taking all the foregoing into account, the Tribunal considers that Primary Consideration 8.3 weighs slightly against revocation.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that it is not the function of the Tribunal to independently assess community expectations in this case, but to proceed on the basis of the Government’s views as articulated in the Direction.
The attribution of weight to this consideration as articulated in the Direction is a matter for the Tribunal.[115] However, deportation may have devastating consequences for people who have an indefinite right to remain in Australia, and in determining the weight to be given to this consideration the Tribunal is obliged to give real consideration to the human consequences that removal from Australia can bring about.[116]
[115] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[116] See the remarks of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. See also Dunasement v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [29]; [58] to [60].
The Tribunal gives weight to the very clear and unequivocal language of the simple proposition found in paragraph 8.4(1) of the Direction. It is in these words: “The Australian community expects non-citizens to obey Australian laws while in Australia.” Paragraph 8.4(2)(a) particularises this expectation that the Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they raise serious character concerns through conduct in Australia or elsewhere, which includes acts of family violence, and commission of serious crimes against women.
Having regard to paragraph 5.2(4) of the Direction, the Tribunal does consider that having regard for the fact that the Applicant came to Australia at a very young age and has now lived here for about half his life, the Australian community would offer a higher level of tolerance of the Applicant’s criminal conduct. The Applicant has contributed to the community through his work, and has, for the most part, behaved appropriately whilst on bail. Added to this, he has been financially supportive to his children and KF, and all of them, along with his parents and immediate family, will suffer negatively in consequence of an adverse decision.
Having regard for paragraph 5.2(4) of the Direction, the Tribunal is entitled to increased tolerance, but nevertheless concludes that having regard to the very serious nature of the Applicant’s offending, this Primary Consideration must still weigh against revocation of the mandatory cancellation of the Applicant’s visa, but to a lesser extent than it otherwise would.
Conclusion: Primary Consideration 4
The Tribunal considers that the expectation of the Australian community weighs moderately against revocation.
OTHER CONSIDERATIONS
It is now necessary for the Tribunal to consider the Other Considerations, listed at paragraph 9 of the Direction.
International Non-Refoulment Obligations
This Other Consideration 9.1 is not relevant and given neutral weight.
9.2 Extent of Impediments if Removed
The Applicant is a 25-year-old citizen of New Zealand, in good physical health, but with a history of mental illness and multiple suicide attempts. The Tribunal considers he is likely to face severe depression alongside his isolation and separation from his children and close family. The Tribunal accepts that this could lead to significant difficulties for him in establishing a stable life in New Zealand and may well impact adversely on his prospects of gaining and maintaining stable employment. Whilst the recent reports as to the Applicant’s mental health are reasonably good in the circumstances, there is a real risk that he may become suicidal following deportation.
The Applicant has foreshadowed an intention to seek medical assistance immediately upon his release, whether that be in Australia or New Zealand. The Tribunal is of the view that it is very much in his interests that he adheres to this proposed path.
The Applicant identifies as Maori but is not fluent in the language. He can however speak English well and there is no reason to believe that he will encounter substantial language, or cultural barriers in New Zealand. Moreover, New Zealand has a comparable system of social medical and economic support to that of Australia, and he should be able to access that support if he seeks to.
The Applicant has only one elderly relative in New Zealand with whom he is close, although he does have other relatives who reside there. The Applicant should be able to maintain contact, via telephone and the Internet, with his children and loved ones in Australia. Finances permitting, it is likely that his parents, in cooperation with KF, will enable his children to visit him in New Zealand. In the fullness of time, it may be that one or more of his children can live with him there, should they choose to do so.
Other Consideration 9.2 therefore weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
9.3 Impact on Victims
The only victim of the Applicant’s offending is KF, who has expressed a preference that he be allowed to remain in Australia. Whilst the Applicant’s removal to New Zealand would see her safeguarded against the prospect of further violent assault, it would nevertheless see her consigned to a life as a sole parent, with the associated financial and emotional hardships discussed, which would, to some degree, be offset by the very positive parental role played by the Applicant’s parents. The Tribunal accepts that the hardships faced by KF (in consequence of the Applicant’s deportation) would have a flow on effect to the Applicant’s children, who are themselves likely to suffer increased emotional adversity.
However, the Tribunal is also mindful that, having regard to the pattern of reconciliation between KF and the Applicant, if he remains in Australia, in accordance with her wishes, she may be exposed to serious injury or worse.
This consideration 9.3 weighs slightly in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.4 Links to the Australian Community
9.4.1 The Strength, Nature and Duration of Ties
As noted above, deportation may have devastating consequences for people who have an indefinite right to remain in Australia, and in determining the weight to be given to this consideration the Tribunal is obliged to give real consideration to the human consequences that removal from Australia can bring about.[117]
[117] See the remarks of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. See also Dunasement v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [29]; [58] to [60].
If this Applicant is deported, there will be the immediate consequence of the breakup of a close-knit family (which for present purposes includes KF and their children), with the associated anguish and emotional hardship for all concerned.
First and foremost, the children will face negative consequences, including those discussed above in Primary Consideration 3.
Secondly, KF, who gave evidence on the Applicant’s behalf and wants him to remain in Australia, will bear the heavy burden of essentially single parenthood. This is only alleviated to some degree by the support she receives from the Applicant’s parents, which might reasonably be expected to diminish with the passage of time. Her capacity to generate income is likely to continue to be diminished, although this may be offset to some uncertain degree by financial support from the Applicant, provided his mental health in New Zealand allows him to maintain employment, which it may not. On the other hand, she will be quarantined from the prospect of further episodes of domestic violence perpetrated by the Applicant against her.
It appears that the Applicant’s children are already manifesting behavioural issues. The children are presently under an expectation that their father will return into their lives. If this expectation remains unfulfilled, human experience suggests that these behavioural issues may increase with time. This may increase the day-to-day strain on KF, who has a history of mental health issues of her own. It is quite possible that this added, constant strain could lead to a deterioration in KF’s mental state.
It is clear from the oral and written evidence of the Applicant’s mother and father that the Applicant has the strong support of his parents, who have selflessly supported him both financially and morally, and endured the anguish of his mental health issues and multiple suicide attempts. The Tribunal accepts that they would, “go to hell and back” for their family and are, “currently doing so” for the Applicant.[118] The Applicant’s deportation will severely impact on his mother and father well beyond the significant emotional hardship and separation anxiety one would expect in such a circumstance from ordinary human experience. It is likely that they will face ongoing anguish over the state of his mental health and prospects of survival.
[118] Exhibit R1, Section 501G Documents, G2, page 347, paragraphs 28 to 32.
If this Applicant is to be deported, his parents, who are nearing 60 years of age and the end of their earning years, will be forced to play an ongoing quasi-parental role caring for their grandchildren at a time in their lives where they would prefer to play a more traditional role as grandparents. The Tribunal considers that the burden of this role will increase as they age.
The Tribunal accepts that this also will involve incidental additional expense for them. They are renting large premises, to which the Applicant used to contribute $250 per week. They will need to either continue to shoulder this burden, or find cheaper accommodation, if indeed they can, in a competitive market. They will also be faced with the financial burden of travelling to New Zealand to visit their son. Should the Applicant’s mental health again decline, he may be unable to work, or repay the money that they have spent on his legal fees and associated expenses over recent years.
The Applicant’s deportation will also weigh heavily on his sixteen-year-old sister, N, whom he described as a, “mini-me”, and who in her own words, has, “always idolised him” and who made the plaintive cry, “I hope as his younger sister someone can listen to me as to how important he is in my life.”[119] Further insight is found in her eldest brother’s statutory declaration which speaks to the ripple effects N has already endured having observed the increased strain on her parents – the Applicant’s circumstances already appear to be weighing heavily upon her.[120]
[119] Ibid, page 319.
[120] Ibid, page 347, paragraphs 33 to 34.
The Tribunal accepts that the Applicant’s deportation would have a, “massive impact” on his elder brother,[121] who holds a resident return visa and has an indefinite right to remain in Australia.
[121] Ibid, page 330; page 345; Exhibit R2, Summonsed Documents, SM1, page 73.
It is also clear that the Applicant’s deportation would also impact on his brother’s children, particularly his nephew with whom he is said to have a special bond.[122]
[122] Exhibit R1, Section 501G Documents, G2, page 346, paragraphs 17 to 20.
The Tribunal has had regard to paragraphs 5.2(4) and 9.4.1(2)(a) of the Direction and whether the Australian community might afford the Applicant a higher level of tolerance.
This Applicant came to Australia at the age of thirteen and has now lived in Australia for over twelve years. He completed his schooling in Australia, and has been continuously employed since leaving school, apart from a period of unemployment stemming from his poor mental health, as well as his periods of incarceration and detention. His commitment to his work is demonstrated by the invitation to continue employment with his former employer were he to be released from detention.
The duration of his stay in this country presents as a strong tie to Australia. He has the strong support of Australian citizens and permanent residents including his family and friends, his former employer, and his ex-partner. He has three infant Australian citizen children, all of whom are demonstrating adverse impacts already caused by separation from him.
The Tribunal finds that a consideration of paragraph 9.4.1 weighs very heavily in favour of revocation.
9.4.2 Impact on Australian Business Interests
It was not submitted by either Party that this was a relevant consideration. As such, the Tribunal gives it neutral weight.
An overall consideration of the Applicant’s links to the Australian community, as required by paragraph 9.4 of the Direction, weighs very strongly in favour of revocation.
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: neutral weight;
·Extent of impediments if removed: weighs heavily in favour of revocation;
·Impact on victims: slightly in favour of revocation;
·Links to the Australian community: weighs very heavily in favour of revocation; and
·Impact on Australian business interests: neutral weight.
Conclusion: Other Considerations
An overall consideration of paragraph 9 of the Direction, Other Considerations, weighs very strongly in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 weighs very heavily in favour of non-revocation;
·Primary Consideration 3 weighs slightly in favour of non-revocation;
·Primary Consideration 4 weighs moderately in favour of non-revocation; and
·To the extent that Other Considerations weigh very strongly in favour of revoking the mandatory visa cancellation decision, they do not outweigh the heavy and determinative weight applied to Primary Considerations 1, 2, 3 and 4, respectively.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The reviewable decision of the Respondent, dated 14 December 2021, is affirmed.
I certify that the preceding 308 (three-hundred-and-eight) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.............[SGD]..............
Associate
Dated: 18 March 2022
Dates of hearing: | 17th and 18th February, 2022 |
| Applicant: Solicitor for the Applicant: | Ihaia Hayden Raharuhi Te Huia Ms Jennifer Samuta (Samuta McComber Lawyers) |
Solicitor for the Respondent: | Mr Kyu-Won Kim (Clayton Utz) |
Annexure A – Exhibit Register
Exhibit Number
Description of Exhibit
Party
Date of Document
Date of Receipt
R1
Section 501G Documents (pages 1 to 482)
R
Various dates
12 January 2022
R2
Bundle of Summons Material (pages 1 to 174)
R
Various dates
25 January 2022
R3
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 14)
R
3 February 2022
3 February 2022
A1
Applicant Statement of Facts, Issues and Contentions (pages 1 to 20)
A
Various dates
25 January 2022
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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Natural Justice
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Statutory Construction
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Jurisdiction
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Remedies
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5
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