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

[2023] AATA 2576

Rawiri and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2576 (14 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/3611

Re:Dawson Rawiri

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:               Mr S Evans, Member

Date of decision:                   14 August 2023 

Date of written reasons:         16 August 2023

Place:Sydney

The decision under review, being the decision of a delegate of the Minister dated 22 May 2023 not to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

................[Sgd]........................................................
Mr S Evans, Member

Catchwords

MIGRATION – visa cancelled under subsection 501CA(4) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds – Direction no. 99 considered – reviewable decision set aside and substituted.

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Materials

Direction no. 99 – Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Mr S Evans, Member

INTRODUCTION

1. Dawson Rawiri (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) dated 22 May 2023 not to revoke the mandatory cancellation of his Special Category (Class TY) (Subclass 444) visa (the visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1]

   [1] G/14

2. The Applicant was born in New Zealand and is a citizen of that country. He arrived in Australia on 28 July 1999, age 27.[2] The Applicant’s visa was cancelled on 28 June 2022 pursuant to s 501(3A) of the Act[3] following a conviction on 23 May 2022 for 2 counts of Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to 12 months imprisonment by the Mount Druitt Local Court.[4]

   [2] G/143

   [3] G/17

   [4] G/38

   Relevant law and ministerial direction 99

3. Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

4. Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).

5. Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

6. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which 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.

7. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

8. The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).

9. Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:

   (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 noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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.

   (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

10. Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[5]

    [5] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J

11. The primary considerations in the Direction are:

    (1)protection of the Australian community from criminal and other serious conduct;

    (2)family violence committed by the non-citizen;

    (3)strength, nature and duration of ties of the non-citizen to Australia;

    (4)best interests of minor children in Australia affected by the decision; and

    (5)expectations of the Australian community.

12. The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

    Issue to be determined

13. The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.

14. Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:

    (i)that the Applicant passes the character test; or

    (ii)that there is another reason why the original decision should be revoked.

15. As the Applicant was sentenced to` a term of imprisonment greater than 12 months in the Mount Druitt Local Court on 23 May 2022 I am satisfied that he does not pass the character test for the purpose of subparagraph 501CA(4)(b)(i) of the Act.

16. Having found that the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.

    EVIDENCE

    The Applicant’s offending

17. The Applicant has an extensive criminal history which is set out in the Respondent’s Statement of Facts, Issues and Contentions[6] and a ‘New South Wales Police Force Criminal History – Bail Report’.[7]

    [6] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [5] – [12]

    [7] Respondent’s Tender Bundle (RTB), 1-15

18. In May 2000 the Applicant was convicted in the Blacktown Local Court of Maliciously Wound-T1.[8] Police records indicate the conviction followed an incident at a public venue during which the Applicant struck his victim in the face with a pool cue and drove away in a motor vehicle while intoxicated.[9] In February, May and August of 2000 the Applicant was found guilty of traffic offences including Drive without license on road and Mid Range PCA – drive motor vehicle.[10] The Applicant was convicted of further driving offences in 2006, 2008, 2010 and 2014.[11]

    [8] G/41

    [9] RTB/60-61

    [10] G/41-42

    [11] G/41

19. On 9 July 2012 the Applicant was convicted of Assault occasioning actual bodily harm (DV). The details of the offence are set out in a Police Facts Sheet.[12] The Applicant was reported to have made a full and frank admission of the events ‘in order to show his children the ramifications of being an aggressor in an incident of domestic violence.’[13] The Police Facts set out that the Applicant had been arguing with his son at their home. Fearing the Applicant may assault their son, the Applicant’s wife, Ms Bailey, grabbed him by the arm and asked him to stop. The Applicant turned towards Ms Bailey and punched her to the left side of her face, striking her eye and causing her eyelid to split.[14]

    [12] G/45-46

    [13] G/45

    [14] G/46

20. On 29 May 2017 the Applicant was convicted of Common Assault (DV) by the Mount Druitt Local Court for assaulting his then 15 year-old son.[15] The circumstances of the assault are set out in the Police Facts Sheet.[16] The assault followed a verbal argument between the Applicant and his son. After his son returned to his room and slammed the door, the Applicant kicked the bedroom door open, and grabbed his son by the hair and pulled him to the ground. As they were wrestling on the floor they broke the leg of a small bedside table. When his son went out to the front of the house the Applicant followed him and pursued him with the broken table leg.[17]

    [15] G/40-41

    [16] G/48-49

    [17] G/48

21. On 13 January 2020 the Applicant was convicted of Contravene prohibition/restriction in AVO(Domestic), Stalk/intimidate intend fear physical etc harm (domestic) and Resist or hinder police officer in the execution of duty.[18] According to the Police Facts Sheet,[19] the Applicant’s behaviour changed following consumption of alcohol and he began to argue with Ms Bailey. During the argument the Applicant stood up and yelled at Ms Bailey ‘if I get arrested and I get deported, I’m going to come back and kill you.’[20]

    [18] G/40-41

    [19] G/50-53

    [20] G/52

22. On 13 November 2020 the Applicant was convicted of contravene prohibition/restriction in AVO (Domestic) and sentenced to a term of 3 months imprisonment by the Mount Druitt Local Court.[21] In sentencing the Applicant Magistrate Gibson observed:

    Mr Rawiri, you have pleaded guilty to an offence of contravening an AVO. It is an offence that you know carries a maximum penalty of two years’ imprisonment. You were on an ICO at the time of this offence, which commenced on 26 October 2020. It was an eight month ICO imposed, I think, by me after you had been called up in respect of breaches of Community Corrections orders. It appears that you just cannot stop contravening AVOs. In this case in my view the contravention is significant. You are attending the house, you are in contact, then you were calling the victim names such as a bitch and a snitch. You denied being there. You caused her to have to call triple-0 to get the police to remove you from the premises. You were not there when they got there. You have denied it initially then you gave another story about it was all her. I do not accept that at all.[22]

    [21] G/38

    [22] G/60

23. On 23 May 2022 the Applicant was convicted of 2 counts of Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced in the Local Court of Mouth Druitt court to a term of 12 months imprisonment with a non-parole period of 2 months.[23] In sentencing the Applicant Magistrate Milovanovich acknowledged the breaches were non-violent and that there was potential for rehabilitation in the future. However, his Honour still considered the Applicant’s offending serious, particularly given his history of contravening AVOs.[24] 

    [23] G2/38

    [24] G2/68

    The Applicant’s evidence

24. In addition to giving oral evidence at the hearing, the Applicant has provided a statement dated 26 June 2023 in which he sets out matters relating to his background, children, family and offending.

25. The Applicant was born and raised in New Zealand. He experienced a violent upbringing during which he ‘was subjected to daily physical and verbal abuse by his father.’[25] His mother was an alcoholic who was also abused by the Applicant’s father.[26] From age 13 the Applicant was cared for by various members of his mother’s family and was required to regularly change schools.[27] He left school age 14 and began working as a roof tiler.[28] In 1988 he met his partner Richelle Bailey. The couple’s first child was born in 1992 and they married in 2014.[29]  

    [25] Statement of the Applicant dated 26 June 2023 (Applicant’s Statement), [4]

    [26] Applicant’s Statement, [3]

    [27] Applicant’s Statement, [5]

    [28] Applicant’s Statement, [7]

    [29] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [6]

26. The Applicant and Ms Bailey migrated to Australia seeking a ‘fresh start’ and to ‘build a better life’ in 1999.[30] Approximately 6 months after arriving in Australia they were able to bring their two children to Australia to live with them. The Applicant now has 8 children, all of whom reside in Australia.[31] Three of his children are minors.

    [30] Applicant’s Statement, [8]; ASFIC, [7]; G/143

    [31] Applicant’s Statement, [8]

27. The Applicant acknowledges he had not always set a good example for his children, but he maintains a close relationship with all his sons and strives to be a better father.[32]

    [32] Applicant’s Statement, [12] – [13]

    Evidence of Richelle Bailey, the Applicant’s wife

28. Ms Bailey has provided a statement dated 26 June 2023 and gave evidence at the hearing. 

29. The Applicant and Ms Bailey have been in a relationship for over 30 years.[33] She acknowledges that they have experienced difficulties during that time. Ms Bailey is an active member of her Church and credits her involvement with the couple marrying in 2014.[34] The Applicant was also ‘really involved’ in the Church between 2014 and 2020. Ms Bailey recalls the period during which they were both actively participating in the Church as a positive time for them both. However, the Applicant’s involvement with the Church waned and when he wanted to return to the congregation he was unable to do so because an Apprehended Violence Order (AVO) was in place.[35]

    [33] Statement of Ms Richelle Bailey dated 26 June 2023 (Ms Bailey’s Statement), [2]

    [34] Ms Bailey’s Statement, [9]

    [35] Ms Bailey’s Statement, [11] – [12]

30. Ms Bailey gave evidence that the Applicant was violent towards her on three occasions but she had never ‘really been afraid’ of him.[36] She writes that the difficulties he faced during his life saddens her. On occasion she worried about the prospect of the Applicant self-harming because he has been suicidal.  

    [36] Ms Bailey’s Statement, [16]

31. Should the Applicant return to the community, Ms Bailey is confident that they will continue their relationship.[37] She plans to seek marriage counselling to ensure she and the Applicant have a fresh start and are better able to communicate, which the Applicant has agreed to. Ms Bailey is confident that Applicant will maintain his sobriety.[38]  

    [37] Ms Bailey’s Statement, [17]

    [38] Ms Bailey’s Statement, [19] – [20]

32. Ms Bailey acknowledges that her children have been exposed to the Applicant’s violence, which she considers ‘unacceptable.’[39] Nonetheless, she considers the Applicant has a great relationship with his children and has, despite his faults, been a good father to the younger children.[40] She states that separation from their father has been difficult for the three youngest children, particularly ED. Since his father was imprisoned, ED has required two surgeries following a football injury. He has lost considerable weight and his grades have suffered. Ms Bailey has found managing ED’s condition difficult without the Applicant’s support.[41]

    [39] Ms Bailey’s Statement, [25]

    [40] Ms Bailey’s Statement, [23]

    [41] Ms Bailey’s Statement, [36] – [39]

33. The Applicant’s separation from his family has been emotionally and financially difficult for Ms Bailey who fears for the future should the Applicant not be able to remain in Australia. In her statement she writes: 

    It will be really hard without [the Applicant]. I need to start slowing down. I can’t keep working and looking after my family on my own. But I can’t do that right now because I don’t have him. If he came back I would be able to slow down a bit because I would have his support with the kids and also his income to help us out.[42]

    [42] Ms Bailey’s Statement, [43]

    Report of Tim Watson-Munro

34. Consultant Psychologist Tim Watson-Munro has provided a report following an interview and psychological assessment of the Applicant. Mr Watson-Munro concludes the Applicant is suffering a range of psychological conditions including a recurring depressive disorder, anxiety disorder and a substance use disorder which is in partial remission.[43] 

    [43] Applicant’s Tender Bundle (ATB), 90

35. Mr Watson-Munro observes the Applicant ‘appears to have had an epiphany in relation to his conduct’ having detoxified and become heavily involved in the Christian faith. Regarding the risk that the Applicant may reoffend, he identifies a number of protective factors including viable employment options in the community, being well supported by his family, and better insight to the dynamics surrounding his offending conduct. Mr Watson-Munro notes the Applicant has expressed remorse regarding his behaviour and did not ‘did not attempt to obfuscate or exculpate responsibility for his past actions.’[44]

    [44] ATB/91

36. In Mr Watson Munro’s opinion the Applicant requires ongoing treatment to address the underlying drivers of his substance use disorder and associated mental health conditions. He recommends the Applicant would benefit from Cognitive Behavioural Therapy and supportive and motivational psychotherapy. He concludes that ‘arising from these factors … with ongoing support, supervision and treatment, [the Applicant’s] risk of reoffending is trending from Moderate to Low.’[45]

    [45] ATB/92

    Consideration

    Primary consideration 1 – Protection of the Australian community from criminal or other serious conduct

1. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard to:

   a)the nature and seriousness of the non-citizen’s conduct to date; and

   b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the Applicant’s conduct to date

2. In considering the nature and seriousness of the Applicant’s conduct I am required to have regard to the factors set out in paragraph 8.1.1(1) of the Direction.

3. I have set out the details of the Applicant’s offending earlier in these reasons. The Applicant has committed multiple family violence offences. Crimes of a violent nature against women or children and acts of family violence are viewed very seriously in the Direction. In addition to family violence, the Applicant’s criminal conduct includes a conviction for malicious wounding after he struck his victim in the face with a pool cue. Crimes of violence are also considered serious.

4. The Applicant does not dispute his offending or its seriousness. He gave evidence that he accepts responsibility for his offending as evidenced by his guilty pleas and expressions of remorse. I acknowledge that the offending which led to the cancellation of the Applicant’s visa was non-violent and the relatively short non-parole period imposed by the Court.

5. However, having regard to the Direction, the Applicant’s conduct to date must be regarded as very serious.

6. Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively: 

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending. 

   The nature of future harm

7. It is not in dispute that should the Applicant commit similar offences in the future, there is a significant risk it would cause physical, psychological and economic harm to members of the Australian community.

   The likelihood of the Applicant engaging in further criminal or other serious conduct

8. The Applicant contends that he is at low risk of reoffending on account of his remorse, insight into his offending, engagement with psychological support, his sobriety and significant protective factors including the support of his family and employment prospects.[46] He also gave evidence that the experience of being imprisoned and held in immigration detention and separated from his family had been a ‘wake up’ for him and that he has had ‘a good look at himself’. Whilst in immigration detention he completed courses including Depression Management, Domestic Violence 101 and Dads4kids inside-out fathering.[47]

   [46] ASFIC, [45] – [49]

   [47] G/115-117

9. The Applicant acknowledges a strong link exists between his substance abuse and offending. While in detention he has completed the EQUIPS Program, Understanding addiction and SMART Recovery programs. He has also sought psychological support which he claims has provided insight into his past trauma and his self-medication using drugs and alcohol.[48] The Applicant now wishes he had sought treatment earlier and is committed to continuing treatment and abstaining from drugs and alcohol if allowed to return to the community. He plans to obtain a mental health plan to ‘snuff out’ his offending behaviour.[49]

   [48] G/131

   [49] Applicant’s Statement, [49]

10. The Applicant’s past substance abuse includes use of use of methamphetamine (ice), marijuana and alcohol. At the hearing he confirmed having most recently using drugs or alcohol prior to his imprisonment and not having used since. He gave evidence he began using ice between 8 and 9 years ago. Initially he took the drug at parties and recreationally on weekends. He began using ice during the week and became a daily user for a period. A NSW Corrective Services case note report states that the Applicant failed a confirmation random urinalysis test conducted on 20 July 2022.[50] When asked about this during the hearing the Applicant maintained that he had not used drugs since his imprisonment and had been sober for 14 months.

    [50] RTB/97

11. Mr Watson-Munro reports the Applicant has symptoms indicating depression and anxiety related disorders which the Applicant now recognised as something he has experienced most of his life and has not dealt with ‘until now’.[51] The Applicant claims he is committed to counselling and treating his mental health should he return to the community.[52] He has undertaken some counselling while in detention. 

    [51] Applicant’s Statement, [35]

    [52] Applicant’s Statement, [49]

12. Mr Watson Munro’s assessment that the risk of the Applicant reoffending is trending from moderate to low is premised on the Applicant maintaining his sobriety, continuing to treat his mental health and having access to protective factors including employment and his family.[53]  

    [53] ATB/91-92

13. Based on the evidence I am satisfied that the Applicant is genuine in his intention not to reoffend and to abstain from further substance abuse. He has demonstrated some understanding of the factors which have contributed to his offending behaviour including his exposure to violence as a child, the absence of suitable role models and difficult childhood. However, I found the Applicant’s insight into his offending was at times general and superficial, particularly his understanding of domestic violence. However, I accept the considerable period he has spent away from his family since his imprisonment in May 2022 and subsequent detention appears to have had a salutary effect.

14. That said, the Applicant’s violent conduct in Australia commenced shortly after his arrival in Australia in 1999. Over the years that followed he had frequent interactions with law enforcement and the Courts during which he was provided ample opportunity for reform. A pre-sentence report prepared for the Backdown Local Court in relation to the Maliciously wound conviction from 2000 states in part: 

    Alcohol: [The Applicant] admits that he was in a state of severe intoxication at the time the offence was committed. He is convinced that his reaction to the incident would have been totally different should he have been sober.

    [The Applicant] described himself as a former heavy drinker. He stated that fallowing the incident he did not consume any alcohol for two months. He then resumed drinking, but in moderation. He related that he has never reached that level of intoxication since the offence.

    [The Applicant] understands that alcohol abuse affects his judgement and his health. He is prepared to seek counselling or attend programmes to address this issue.

    Cannabis: The offender stated that he had used cannabis a few times on the day of the offence. He feels that this substance also affected his behaviour in a negative way.

    [The Applicant] acknowledges a problem with cannabis, which he stated he uses on a daily basis. He will accept any referral to assist him in addressing this drug issue.

    …

    He is convinced that his actions were negatively affected by his poor judgement as a result of being under the influence of alcohol and an illegal substance.[54]

    [54] RTB/98-99

15. Despite having these insights into his offending behaviour in 2000, the Applicant’s offending behaviour has persisted until 2022. His criminal history indicates he has continued to offend despite the efforts of law enforcement and the Courts and the harm caused to others including members of his own family.

16. The Applicant contends that his active participation in Church was a significant protective factor and will be again as he intends to resume participation should he be released into the community.[55] Given the Applicant’s evidence he joined the Church in 2014 and his criminal record includes a conviction for assaulting his son in May 2017, I afford this limited weight.

    [55] G/132

17. Mr Watson-Munro has identified a range of additional protective factors which support his assessment of the Applicant’s risk of reoffending.[56] That assessment is premised on the Applicant maintaining access to the protective factors whilst proactively engaging in treatment.

    [56] ATB/92

    Protection of the Australian community – conclusion

18. The Applicant’s frequent offending since arriving in Australia along with the nature of his conduct are serious. The risk of his reoffending is largely dependent on his continued abstinence from drug and alcohol abuse and the Applicant taking proactive measures to address his offending behaviour. His ability and commitment to doing so is untested in the community.

19. In light of all these factors, I consider there remains a medium risk the Applicant may reoffend which represents a considerable risk to the Australian community. For these reasons, this primary consideration weighs strongly in favour of not revoking the cancellation decision. 

    Primary consideration 2 - Family violence committed by the non-citizen

20. The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence.  

21. The Applicant’s offending includes acts of family violence against Ms Bailey and his son. During one offence the Applicant punched his wife in the face and in another he dragged his minor child by the hair. I accept the Respondent’s contention that as the crimes were committed in a domestic setting, it is reasonable to assume that the Applicant’s other children witnessed the offending and would have observed Ms Bailey’s injury.[57]

    [57] RSFIC, [44]

22. The Applicant has multiple convictions for breaching AVOs.[58] Though the frequency of the Applicant’s acts of family violence is significant, I do not consider there to be a trend of increasing seriousness.

    [58] G/39-40

23. The Applicant acknowledges having engaged in acts of family violence and accepts responsibility for his conduct. Reflecting on his own experience of family violence as a child, the Applicant appears to have some understanding as to the impact of his conduct on his wife and children. He has also undertaken efforts to address factors contributing to his conduct including completing a domestic violence program.

24. The family violence committed by the Applicant weighs against revocation of the mandatory cancellation of the Applicant’s visa.

    Primary consideration 3 – The strength, nature and duration of ties to Australia

25. I am required to consider the impact of the decision on Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely.

26. The Applicant has resided in Australia for 24 years and has a large immediate family comprised of his wife, eight children and multiple grandchildren who all reside in Australia. A decision not to revoke the mandatory cancellation of the Applicant’s visa would have emotional and financial effects on them. The Applicant’s adult son Bailey Rawiri has written of the close bond he shares with his father. Ms Bailey writes she has been overloaded with additional responsibilities during the Applicant’s absence. She requires surgery and wishes to slow down. I accept that the Applicant’s absence would be detrimental to Ms Bailey and their adult children.

27. The Applicant’s extended family in Australia include a brother, 13 aunts and uncles, more than 30 cousins and 30 nieces and nephews. Though there is little information about the Applicant’s relationship with them, I accept that a decision not to revoke the mandatory cancellation decision would have an emotional impact on them. 

28. For the most part the Applicant has been gainfully employed in the transport, logistics and construction sectors since migrating to Australia and I take his positive contribution into account.

29. Having particular regard to the impact of the decision on Ms Bailey and the Applicant’s five adult sons, I find this consideration weighs in favour of revoking the mandatory cancellation decision.

    Primary consideration 4 – Best interests of minor children affected by the decision

30. Direction 99 requires the Tribunal to make a determination about whether refusal to grant the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.

31. As mentioned the Applicant has three minor children in Australia - AN is aged 17, JY age 15 and ED age 12. The Applicant maintains a positive relationship with his three minor children and has taken an active role in their care and upbringing. Prior to his arrest and incarceration, the Applicant worked night shift and Ms Bailey worked the day shift. He was responsible for preparing the boys for school in the morning and taking them to football and rugby training and games on the weekends. In his statement the Applicant writes of the impact of his absence on ED:

    [ED] is doing it tough and he gets very sad and emotional at times. I’m very close to [ED]. He understands that I’ve done the wrong thing and has taken pretty hard. He has lost interest in school and sport.

    [ED] has also been going through a lot with his operations and I haven’t been there for him which is really hard to accept.

    The burden of all of this has fallen on my wife and she is already struggling as it is. I’ve made it harder for her.

    All the boys are just so beautiful and they all are so concerned and worried about me. I have told them on daily phone calls, I am fine and see you soon. I say this so that they don’t worry more than necessary. They know that I am making progress addressing my issues and won’t rely on drugs and alcohol again and that makes them very happy.

    I speak with the boys regularly especially [JY] and [ED]. [AN] is working so we aren’t able to talk as often. I’m especially worried about [JY] and [ED] because [JY] has just made [redacted] rugby league and I want to make sure he stays grounded and [ED] because I want to make sure that he is healing ok from his surgery.

    They [both] are feeling sad and they are angry at the fact that I could be going home. I’ve told them I’ve done the wrong thing and could pay the price for that. They are shell shocked at the possibility of me going home. The uncertainty is really hard for them.[59]

    [Errors in original]

    [59] Applicant’s Statement, [15] – [20]

32. Ms Bailey is also currently caring for the Applicant’s minor children and gave evidence it was difficult for her to manage without the Applicant’s practical and financial support. She also acknowledged the impact his absence has had on the children, particularly ED.

33. ED sustained a hip-injury shortly before the Applicant’s incarceration which necessitated surgery. Ms Bailey gave evidence that the fact the Applicant was not able to be present for ED’s second surgery has affected ED negatively, and that due to his injury ED now requires help travelling to school. She states the Applicant would be able to assist with ED should he be released into the community.

34. There is little information regarding the Applicant’s grandchildren before the Tribunal, though I note the Applicant’s evidence that one had passed away. He also claims to have a particularly close bond with two of his grandchildren.

35. The Applicant’s offending has exposed his minor children to family violence and his children and grandchildren have another person who fulfils the parental role. Nonetheless, I accept that he has maintained a close and meaningful relationship with his children and grandchildren.

36. Overall, I am satisfied that the best interests of the Applicant’s minor children and grandchildren are served by the revocation of the cancellation decision. This consideration weighs heavily in favour of revocation of the cancellation decision. 

    Primary consideration 5 - Expectations of the Australian community

37. Paragraph 8.5 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states: 

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

38. In FYBR v Minister for Home Affairs[60] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.

    [60] [2019] FCAFC 185

39. The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that the Applicant’s criminal conduct and acts of family violence is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.

40. Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the Applicant’s visa.

    Other consideration A - Legal consequences of the decision

41. The Applicant does not contend that he ‘engages Australia’s protection obligations’ and there is no suggestion that he would face any prolonged detention should his visa cancellation not be revoked. However, the legal consequences of the decision not to revoke the cancellation of the Applicant’s visa are argued to weigh in favour of the Applicant on the basis that ongoing detention, removal from Australia and inability to return would have a significant detrimental impact on his mental health, particularly as someone with severe depression.[61]

    [61] ASFIC, [78] – [79]

1. I accept the Respondent’s contention that the concerns expressed by the Applicant are taken into account under other considerations and I do not consider them legal consequences.[62] As such, this consideration is afforded neutral weight. 

   [62] RSFIC, [62]

   Other consideration B - Extent of Impediments if removed

2. I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand in the context of what is generally available to other citizens of that country.

3. The Applicant contends he has ‘no real family connection’ to New Zealand having lived for ‘nearly half his life’ in Australia and been ‘abandoned by his parents in New Zealand as a child.’ The Applicant also submits his family, which has an extensive history of drug use and gang involvement, is unlikely to provide any meaningful support should he return to New Zealand.[63]

   [63] ASFIC, [81] – [82]

4. The Applicant states that his father was a gang member and contends he has been threatened during return visits to New Zealand. In the absence of detail or corroborative evidence to support this claim I do not consider he holds genuine fears for his safety should he return to New Zealand.  

5. The Applicant has a history of mental illness and drug and alcohol abuse which he claims will be exacerbated by removal to New Zealand and separation from his family. He contends that the lack of family support combined with his health issues will make it more difficult to establish and maintain basic living standards in line with those generally available to other New Zealand citizens.[64] 

   [64] ASFIC, [82] – [83]

6. I accept that returning to New Zealand will be emotionally difficult for the Applicant and his continued rehabilitation will be aided by having the support of his immediate family. He gave evidence that he plans to continue seeking mental health treatment even if he is returned to New Zealand. Should he do so he would be expected to have access to the same level of mental health care as other citizens of that country.

7. The Applicant does not have any physical disabilities and is a relatively young man in his early 50s. He will have the same access to social, medical and economic support as other New Zealand citizens. There is no apparent impediment to the Applicant finding adequate employment in New Zealand and he has an employment record in transport, logistics and construction for the past 15 to 18 years which he can rely on. Having spent his formative years in New Zealand, there are no language or cultural barriers which the Applicant would need to overcome.

8. For these reasons, I afford this consideration limited weight in favour of revoking the cancellation decision.

   Other consideration C - Impact on victims

9. Paragraph 9.3(1) of the Direction requires the Tribunal to consider the impact of a decision not to revoke the mandatory cancellation of the Applicant’s visa on the victims of the non-citizen’s criminal behaviour and the family members of the victims where information in this regard is available.

10. The identifiable victims of the Applicant’s offending are Ms Bailey and one of the Applicant’s sons. Ms Bailey has set out the negative emotional and financial effect the Applicant’s removal would have on her. I accept the Minister’s contention that marginal weight should be given to the impact on Ms Bailey as these factors have been taken into account when considering paragraph 8.3 of Direction 99. Similarly, the impact of the Applicant’s removal on his son had already been taken into account when considering paragraph 8.4 of the Direction. 

    Conclusion

11. In balancing the considerations, the protection of the Australian community weighs in favour of revoking the mandatory cancellation of the Applicant’s visa. Despite having demonstrated an intention to reform, the Applicant’s resolve remains untested and there is a real risk he may reoffend. The primary consideration regarding the expectations of the Australian community and family violence also weigh against revocation.

12. The best interests of the Applicant’s children weigh heavily in favour of revoking the mandatory cancellation, as do the interests of his wife and adult children. Consequently, primary consideration 3 and primary consideration 4 weigh in favour of revoking the cancellation decision. The impediments that the Applicant is likely to face should he be returned to New Zealand and the impact on the victims of his offending both weigh in favour of revocation, but are afforded little weight.

13. On balance, I find that there is another reason to revoke the cancellation of the Applicant’s visa.

    Decision

14. The Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 22 May 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of

.................................[Sgd].......................................

Associate

Dated: 16 August 2023

Date of hearing:	1 August 2023
Solicitors for the Applicant:	Mr G Rohan, Legal Aid NSW
Solicitors for the Respondent:	Mr M Gao, HWL Ebsworth