Ruka and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 90

Ruka and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 90 (6 February 2025)

Applicant/s:  RUKA, Karl 

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/9566

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date of Decision:                6 February 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa be revoked.

Date of Statement                12 February 2025

of Reasons:

Statement made on 12 February 2025 at 10:08am

Catchwords

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 42 year old citizen of New Zealand– extent of impediments if returned to New Zealand – Non-Revocation Decision is set aside and substituted

Legislation

Migration Act 1958 (Cth) ss 5AB, 15, 189, 196, 197C, 197C(1), 198, 499(1), 499(2A), 501(1), 501(2), 501(3A), 501(6), 501(7). 501(7)(c), 501CA, 501CA(4), 501E, 501F, 503, 5001, 5001(c)

Cases

Khalil and Respondent for Home Affairs [2019] FCAFC 151

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177

Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003

Plaintiff M1/2021 and Minister for Home Affairs [2022] HCA 17

Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296

Webb v Minister for Home Affairs [2020] FCA 831

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Secondary Materials

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.1(4), 5.2, 5.1(8), 6, 7, 8, 8.1(1), 8.1(2), 8.1(2), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.3, 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.1.2, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3 

Statement of Reasons

The decision in this matter was made and provided to the parties on 6 February 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]

Summary

[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

1. Mr Ruka’s visa was cancelled as a consequence of his conviction for a sexual assault. I have decided to revoke that cancellation decision after considering the matters provided for in Ministerial Direction 110. I have found another reason for revoking the cancellation decision. In particular, and in summary only, I consider the evidence demonstrates that Mr Ruka does not pose any danger to the Australian community and the best interests of Mr Ruka’s adolescent sons and one of his daughters should be given very significant weight, and will be served by revoking the cancellation decision.

   Background

2. Mr Ruka is a 42-year old citizen of New Zealand.[2] He arrived in Australia on 8 November 2007 when he was 25 and was granted a Special category (Class TY) subclass 444 visa on arrival.[3]

   [2] HB92.

   [3] HB124.

3. On 7 October 2022, Mr Ruka was convicted of unlawful and indecent assault and sexual penetration without consent in the District Court of Western Australia, following a trial by jury.[4] He was sentenced to serve six months imprisonment for indecent assault, and two years imprisonment for sexual penetration without consent, to be served cumulatively. Mr Ruka was eligible for parole after 21 months.

   [4] HB259.

4. On 3 April 2023, Mr Ruka’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (the Act) on account of his substantial criminal record.[5] At that time Mr Ruka was serving his sentence on a full time basis in a custodial institution for an offence against the law of Western Australia. On 17 April 2023 he made representations to have that decision revoked under section 501CA of the Act.[6] On 13 November 2024, a delegate refused to revoke the decision to cancel Mr Ruka’s visa.[7]

   [5] HB125.

   [6] HB84 – HB120.

   [7] HB55 - HB72.

5. On 19 November 2024 Mr Ruka applied to the Tribunal for review of that decision.[8]

   [8] HB29 – HB43.

   LEGISLATIVE FRAMEWORK

6. Under subsection 501(3A) of the Migration Act 1958 (‘the Act’), the Minister must cancel a visa that has been granted to a person if, among other things:

   (a)the person does not pass the character test because of a substantial criminal record; and

   (b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory. 

7. A person has a substantial criminal record in the circumstances set out in subsection 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (paragraph 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (section 5AB of the Act).

8. If a visa is cancelled under subsection 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[9] If the person makes representations in accordance with the invitation, then under subsection 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.

   [9] Migration Act s 501CA(3).

   Ministerial Direction 110

9. Under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (subsection 499(2A)).

10. The Minister has issued Direction 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Tribunal in making a decision under section 501 or section 501CA of the Act, and the Tribunal must comply with the Direction.

11. An objective of the Direction is to guide decision-makers in exercising powers under sections 501 or 501CA of the Migration Act.[10] In exercising the power under subsection 501CA(4), the Tribunal must have regard to the primary and other considerations set out in the Direction where relevant to the decision.[11]

    [10] Direction No 110 para 5.1(4).

    [11] Direction No 110 para 6.

12. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The safety of the Australian Community is the highest priority of the Australian Government.

    (3)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.

    (4)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.

    (5)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.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[12]

    [12] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).

13. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3) One or more primary considerations may outweigh other primary considerations.[13]

    [13] Ibid cl 7.

14. The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.

    ISSUES

15. The issues before the Tribunal are therefore:

    (a)whether the Applicant passes the character test, as defined by subsection 501(6) of the Migration Act; and

    (b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the decision to cancel the visa should be revoked.[14]

    [14] See subsection 501CA(4) of the Migration Act.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

16. As noted above, the character test is defined in subsection 501(6) of the Migration Act. Paragraph 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by subsection 501(7). Relevant to Mr Ruka’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.  

17. As Mr Ruka was sentenced to a term of imprisonment of 12 months or more, I find he has a substantial criminal record and he does not pass the character test.

    IS THERE ANOTHER REASON WHY THE DECISION TO CANCEL THE VISA SHOULD BE REVOKED?

18. Clause 8 of the Direction contains five primary considerations, which are:

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

    (2)  whether the conduct engaged in constituted family violence;

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

    (4)  the best interests of minor children in Australia;

    (5)  expectations of the Australian community.

19. Clause 9 of the Direction contains other considerations, which are:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    d)impact on Australian business interests.

20. I have considered each one in turn, keeping in mind the principles in clause 5.2 of the Direction.

    The protection of the Australian community

21. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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.[15]

    [15] The Direction cl 8.1(1).

22. The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[16]

    [16] Ibid.

23. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[17]

    [17] Ibid cl 8.1(2).

    Nature and seriousness of the conduct

24. I must consider the nature and seriousness of Mr Ruka’s criminal offending or other conduct to date.[18] In doing so, paragraph 8.1.1(1) of Direction No 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. One such category is crimes of a sexual nature against women, and this is so regardless of the sentence imposed. The Direction also provides that certain other crimes or conduct are considered to be serious. I note that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[19] 

    [18] Direction No 110 para 8.1(1).

    [19] Direction No 110 para 8.1.1(1)(a).

25. As mentioned above, Mr Ruka was convicted of unlawful and indecent assault and sexual penetration without consent against a female victim. I reproduce the following extract from the sentencing remarks of Miocevich DCJ by way of setting out the circumstances of the offending:[20]

    [20] HB78 - HB79.

    The facts that I find for the purpose of sentencing are on Thursday, 26 January 2012 Ms Rendell, the victim, was hosting a barbecue with friends to celebrate Australia Day. Your wife was good friends with the victim.

    The victim would mainly socialise with your wife. You, your wife and two children, ages one and two, were invited to the party. As you lived in Toodyay, your wife made arrangements with the victim to stay overnight at her house after the party. The victim on a prior occasion at another address let you and your wife stay with her for a few months as you had no place to stay.

    You were friends with the victim through your wife and there as little contact between you. There was no history of animosity or arguments between you and the victim, although there as evidence that the victim had flirted with you, which she denies, but it matters not for the sentencing purposes whether this is true or not.

    You arrived at the party around midday. You and your wife at some stage picked up your stepdaughter, Maria, and took her to the party. She was 16 years of age.

    The victim started drinking at about 11 in the morning. You and the victim consumed a large quantity of alcohol during the day and night. There were about 10 guests at the party in total. Other guests left in the late afternoon and you and your wife, your stepdaughter ad the victim sat down and continued playing music, talking, and drinking.

    At around 11.30pm Mrs Ruka said she was going to bed. Soon after, the victim fell asleep at the table. You and Maria took the victim to her bed. She had blacked out and doesn’t remember being taken to bed. The victim was extremely intoxicated and on her own assessment was an eight to nine on the scale of intoxication from one to 10.

    After taking the victim to bed, you then left her and went to the back yard and fell asleep. At some time early in the morning, you went into the victim’s room. She was laying on her bed with no blankets on. She was not wearing underwear and her dress was pulled up to her waist. You told you to wake up for work. You had your hand under her bottom and rubbed her vagina.

    The victim said works to the effect of, “What the fuck?”, rolled over and went back to sleep. This all took place in a short period of time, which the victim estimated at around about 10 seconds. The victim was still severely affected by alcohol and described herself as incoherent.

    You then re-entered the room and I find you pulled the victim’s dress up and began to perform oral sex on her while she was asleep. The victim was still heavily intoxicated. The victim originally started to enjoy herself, but on realising what was happening again said words to the effect of, “What the fuck?”

    At some state during this second incident you told the victim, “Wake up or I’ll put my dick in you”. On realising the victim was awake, you left the room. From the evidence, it appears this second incident was of a short duration and the victim was in shock after realising what happened and went into the shower. Whilst in the shower, you and your family were in the process of leaving. When she got out of the shower, you and your family were already in the car in the process of leaving. The victim waved goodbye to you all from the door.

    A couple of days later, the victim told your partner you had fingered her. On 29 January, the victim went to the police and made a complaint about being sexually assaulted by you. You were interviewed on 7 March 2012 and denied the offence. DNA tests were done, and the results were inconclusive.

    On a cold case review, the underwear was sent for further DNA analysis. Your DNA was matched on her underwear. You were reinterviewed on 10 April 2020 and maintained you did not sexually assault the victim. By the verdicts of guilty, the jury must have found beyond reasonable doubt you sexually assaulted her in the way I’ve described and rejected your denials in the police video record of interview.

26. The court found that the following circumstances to be aggravating:[21]

    And in this case, there was a particular vulnerability of the victim. She was intoxicated, in her own bed, at night. She was particularly vulnerable, and you took advantage of her. The aggravating features are, the offence was persistent in that after being confronted the first time, you went back into the room and again sexually assaulted her.

    On the first occasion, I am not prepared to find it was premeditated and find that you just simply took advantage of an opportunity that presented itself when you went into the room to wake her up. On the second occasion, however, I do find it premeditated, and you went into the room to sexually assault her.…

    The absence of force or intimidation in these circumstances is counterbalanced to a significant extent by the serious abuse of the victim’s vulnerability, there being no opportunity to attempt to prevent the commission of the offence.

    I consider that this offending is very serious, amounting to a sexual offence against a woman. I reach that finding regardless of the sentence imposed, but note further that the court saw fit to impose a substantial term of imprisonment. Indeed, the court noted that imprisonment was the only appropriate disposition of the matter having regard to general deterrence, personal deterrence, punishment, protection of the community and especially female victims.

    [21] HB80; HB81.

1. Mr Ruka did not plead guilty to the offending, and maintained before the Tribunal that he did not commit the offence. To avoid doubt, and as explained to Mr Ruka during the hearing, in accordance with the authority in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based. Mr Ruka’s convictions for unlawful and indecent assault and sexual penetration without consent are the index offending which found the cancellation of his visa under the migration law. Although Mr Ruka did not purport to ‘challenge’ the fact of the conviction, and in this regard he explained that he had come to accept that he had been convicted, he nonetheless maintained his innocence in respect of the offending. However, to avoid doubt, I make it clear that in accordance with HZCP I proceed for all purposes on the basis that Mr Ruka did commit the offending in the circumstances of the essential facts of the matter as described by the sentencing judge. In this regard, I further note that the conviction was imposed following a trial by jury.

2. Mr Ruka’s convictions for unlawful and indecent assault and sexual penetration without consent are his only substantial criminal antecedents. They are not however the only criminal convictions he has.

3. In the course of the Department’s consideration of the matter, Mr Ruka disclosed that he had been convicted for burglary in New Zealand in 16 April 2007 in respect of an incident of 21 August 2006.[22] I have no further documentary evidence regarding that matter, but Mr Ruka has described the incident as involving a situation where he had unlawfully entered the home of a former partner to retrieve his belongings. The court convicted Mr Ruka for the offence and imposed orders for restitution, but otherwise dealt with the matter by what would appear to be described in Australia as a suspended sentence or a good behaviour bond, describe as ‘to come up for sentence if called upon’. Having regard to the manner in which the court dealt with the offending, I do not view the offending as serious.

   [22] HB75.

4. Mr Ruka also has convictions for what might be described as ‘traffic’ offending in both New Zealand and Australia. There are five instances, over the course of some nine years, of Mr Ruka being dealt with for driving without ever having held authority to drive. Of note, despite this offending being recidivist and suggestive of a disregard for the law and the authority of the courts, the penalty imposed by the courts is suggestive that the court viewed the offending as essentially minor. On one such occasion, Mr Ruka was fined $150.[23] 

   [23] HB260.

5. The Minister contends that the cumulative effect of these convictions (along with other traffic offences) are serious, and cites examples in other matters where the Tribunal has accepted that offending in the nature of unlicensed driving is serious. Whilst the rationale of the Tribunal cited in the examples is unquestionably persuasive, as discussed with the Minister’s representative in the context of traffic offences in this matter, it is difficult to construe the offending as serious when the evidence before me regarding the court’s response to the repetitive offending is that the court did not view the offences as serious, despite Mr Ruka ultimately coming before the court for the fifth time on the same charge. Ultimately, I consider Mr Ruka’s recidivist offending in relation to driving while unlicensed reveals a degree of disregard for the law at the time the offences were committed. However, I do not view the offending as serious in a way so as to contradict the conclusion of the sentencing court, having regard to the multiple and continuing lenient penalties imposed by the court. The seriousness of the offending, in any event, is not within the same scale as the seriousness of the index sexual offending against a vulnerable female victim.

6. Returning to that matter, I have taken into account the impact of the offending on the victim. Little evidence is available in that regard, but I take into account that the sentencing judge remarked that the victim had provided a victim impact statement outlining how the offending had a significant adverse impact on her.[24]

   I’ve been provided with a victim impact statement which makes it clear the victim felt violated and lost a sense of trust in a person she thought she knew well. She was in her own home and invited you into her home, and you betrayed that trust. This was a gross breach of trust which has affected her personal life profoundly.

   [24] HB80.

7. As to the frequency of offending and the cumulative effect of repeat offending, I note that the index offending are the only instances of sexual offending Mr Ruka has been convicted for. In that regard, the Minister has provided records from the Western Australia police regarding certain other contacts between the police and Mr Ruka there is no suspicion or suggestion in those records of any other sexual offending.

8. As to whether Mr Ruka has provided false or misleading information to the Department including by not disclosing prior criminal offending, there is evidence that Mr Ruka provided false and misleading information to the Department in 2007 on his incoming passenger card.[25] 

   [25] HB123.

9. Mr Ruka’s name at birth was Karl Smith. His conviction for burglary in New Zealand was entered under the name Karl Smith on 16 April 2007.[26] There is no doubt from the record that Mr Ruka was convicted of that offence, even though the court did not require a penalty to be served.

   [26] HB75.

10. Mr Ruka entered Australia six months later under the name Karl Ruka (Ruka is his mother’s maiden name). Mr Ruka signed an incoming passenger card, which he declared to be true and correct, answering the question ‘do you have any criminal convictions’ by marking “no”.

11. In his evidence, Mr Ruka said that because he didn’t go to prison he didn’t think he had any criminal convictions and so he thought his answer to the question had been correct. I don’t accept this, either as a satisfactory excuse or as a genuine explanation as to why the question was answered in the way it was. As mentioned above, the court in New Zealand very clearly documented that he had been convicted, and the question on the Australian incoming passenger card is neither complex nor poorly worded. I find Mr Ruka made a false statement to the Department as one of his first actions upon arriving in Australia to conceal his criminal history (such that it was) from Australian immigration officials. This is adverse to Mr Ruka, but I also recognise that this was done many years ago, and from the remarks made by the primary decision maker I understand Mr Ruka disclosed the conviction to the Department in the course of requesting the revocation of the decision to cancel his visa. This ameliorates to some extent the adverse weight I would otherwise attach to Mr Ruka’s false statement to the Department in 2007.

12. As the index offending is Mr Ruka’s only significant offence, he has not previously been warned about the consequences of further offending in terms of his migration status. In a similar vein, Mr Ruka does point out that the offence with which he was convicted is somewhat of an historical offence, with his trial proceeding some 10 years after the events giving rise to his convictions. Mr Ruka asked me to note that it has not been alleged that he committed any similar offending during that period, and further explained he was on bail for an extended period of time and complied with all his bail arrangements. I recognise that other than the traffic offences mentioned above, it has not been alleged that Mr Ruka committed any other offending during the extensive period between the events leading to his conviction and the conviction, and there is nothing in the material to suggest that Mr Ruka failed to comply with bail requirements pending his trial.

13. Documents returned under summons from the Western Australia police identify instances of alleged conduct against Mr Ruka which must be addressed both in the context of other potentially serious conduct, the best interests of minor children and whether there is evidence of family violence committed by him. I will recount the circumstances of those matters in further detail under the primary consideration ‘family violence committed by the non-citizen’, and ‘best interests of children’  but I have also reflected on my findings in relation to those matters in the context of the nature and seriousness of Mr Ruka’s conduct. In summary, and for reasons expanded upon later in this document, I take into account only the incident pertaining to Mr Ruka’s inappropriate discipline of his son through burning his hand with a cigarette lighter, and do not place substantially adverse weight on that incident in all the circumstances.  

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

14. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[27]

    (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.      information and evidence on the risk of the non­citizen re-offending; and

    ii.     evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

    [27] See also the Direction, cl 8.1(2)(b).

15. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[28] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[29] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[30]

    Nature of the harm

    [28] The Direction, cl 8.1.2(2)(a).

    [29] Ibid cl 8.1.2(2)(b).

    [30] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Ovshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

16. In light of my finding that Mr Ruka’s criminal offending is very serious, I am also of the view that the nature of harm to individuals or the Australian community should Mr Ruka engage in further criminal conduct of a similar nature is very serious. Sexual offending against women, particularly in circumstances of the victim’s vulnerability as described by the sentencing judge in this particular case is very serious.

    Likelihood of the conduct being repeated

17. As to the likelihood of Mr Ruka engaging in further criminal conduct, I have taken into account the observations of the sentencing judge, Mr Ruka’s conduct in prison, and Mr Ruka’s engagement with rehabilitative courses including the assessments of the unidentified authors of the report.

18. The sentencing judge observed:

    You come before the court with no relevant criminal record. You’ve worked most of your life and have a family of four and are also currently helping your mother, father, and sister. These offences occurred over 10 years ago, and there’s been no allegations of any further offending. Given you have behaved appropriately over the last 10 years, your risk of reoffending is low, and you appear to have rehabilitated yourself.

    Taking everything I’ve heard and read about you, I am prepared to treat this offending as being out of character for you. As a result of a lack of criminal record, you are otherwise of good character and have remained offence-free for over 10 years. I’ve reduced the sentence I would otherwise have imposed upon you.

19. Records returned under summons from the Western Australian Department of Justice record that Mr Ruka was considered by corrections staff to be polite and respectful and required minimal supervision. An individual management plan prepared on 19 October 2023 identified that Mr Ruka should participate in a sex offending deniers program that was at that time unavailable[31].   

    [31] HB304.

20. A parole review report was prepared on 26 April 2024.[32] The report documented that Mr Ruka had not come to any negative attention and was the subject of good unit and industry conduct reports. Parole was recommended, albeit expressed so as to facilitate Mr Ruka’s removal from Australia.

    [32] HB309.

21. Mr Ruka completed the ‘Sexual Offenders Denial Program’ on 2 May 2024. A detailed completion report is available,[33] although unfortunately the identifying details of the facilitators and clinical supervisor have been redacted, and the report contains no information regarding the relevant qualifications and experience of any of the contributing authors. I cannot therefore treat the observations and conclusions in the report as a form of expert opinion evidence because I cannot identify the authors or their expertise. Nonetheless I have read the report with care and take it into account.

    [33] HB316.

22. The introduction to the report makes it clear that participation in the course was not intended to change the stance of denial, rather it was to work with the offender to minimise the risk of reoffending, and to establish detailed self-management plans to assist participants remain offence-free by addressing the same treatment targets as mainstream sexual offending programmes. 

23. The body of the report records that Mr Ruka was anxious and nervous during the pre-group interview, and disliked talking about himself. The report recognises that Mr Ruka persevered and made gains in his social interactions with other group members. The report addressed a number of sensitive topics regarding Mr Ruka’s sexual practices, intimacy and relationships, emotional management and coping, before addressing strategies that may be used towards a risk management plan. In summary, the author of the report noted it was not possible to directly address Mr Ruka’s offending behaviour due to his denial of sexual offending, however treatment needs were addressed. The author identified that although Mr Ruka improved his participation as the program progressed, he was unable to explore a number of matters due to difficulties in allowing himself to be ‘vulnerable’. It was recommended, among other matters, that on release Mr Ruka obtain substance use counselling, random urinalysis, psychological counselling with a focus on emotional management. I note in respect of the reference to substance abuse, this appears to be linked with observations made elsewhere in the report that Mr Ruka had advised of an historical pattern of polysubstance abuse, but it had abated in recent years due to an ultimatum from his wife.

24. I have not found the report to be particular helpful in assessing the likelihood of Mr Ruka reoffending, including because I have been unable to seek clarification about many of the assertions and recommendations made that are far from self-evident. As discussed during submissions, the report refers to Mr Ruka being ‘an average risk of sexual reoffence’ (in his initial Treatment Assessment Report, and I don’t have a document in the material before me with that title), and I have been unable to clarify what that is intended to mean, in the sense of whether it is intended to convey an average amongst convicted sex offenders or a community average.

25. On balance, having regard to all of the evidence before me relevant to assessing the likelihood of Mr Ruka, I am of the view that his risk of reoffending is low. Indeed having regard to the circumstances of the offending, its historical nature and intervening period with no further similar offending, Mr Ruka’s good behaviour in prison and during his period on bail and the likely deterrent effect of his incarceration and present immigration predicament, I consider that Mr Ruka’s risk of reoffending in a way similar to the index offending is low. 

26. The Minister contends that Mr Ruka lacks remorse and insight into his offending because of his position that he is innocent despite his conviction, and therefore the risk (in the sense of likelihood) of his reoffending is real. While Mr Ruka’s position in that regard is certainly inconsistent with remorse, and as explained above I do not proceed on the basis of acceptance in any way of his contention that he is innocent of the offending, I do not consider that an absence of expressed remorse in these circumstances materially speaks to an increase in likelihood that the offending will be repeated. Furthermore, I note that Mr Ruka was able to articulate thoughtfully an acceptance of his conviction while maintaining that he was innocent of the offending.

27. I find that Mr Ruka represents a low risk, in the sense of likelihood, of reoffending. In these circumstances I consider that the risk to the community overall is very substantially reduced despite his offending being very serious.

28. Having given consideration to the nature and seriousness of Mr Ruka’s conduct to date, which I have assessed as very serious in relation to the index offending, and the risk to the Australian community should Mr Ruka commit further offences or engage in other serious conduct, which I have assessed as low on the basis of the low likelihood that Mr Ruka will commit similar offences in the future, I return to the primary consideration of the protection of the Australian community.

29. I note the principle set out at 5.2(8) of the Directions. While I find the index offending to be very serious, it is not of a nature where strong countervailing considerations will be insufficient to justify revoking the decision to cancel the visa. Notwithstanding that Mr Ruka’s index offending is very serious, I consider he presents a low risk to the community, and the weight to be attached to the need to protect the community from harm from criminal activity or other serious conduct is reduced accordingly.

    Family violence committed by the non-citizen

30. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. 

31. Mr Ruka’s index offending was not an offence of family violence, having regard to the definition provided for in the Direction.

32. The Direction however invites and requires an examination of circumstances beyond criminal convictions in taking into account family violence committed by a non-citizen. Indeed, the consideration is relevant where there is information or evidence from independent or authoritative sources indicating that a non-citizen is or has been involved in the perpetration of family violence.

33. HB270 documents an instance where on 10 December 2015 police were contacted by child protection authorities. On or about that date, Mr Ruka’s son “D”, who was then 5 years old, had set fire to the rubbish bin in the kitchen of the family home. Mrs Ruka is documented to have contacted Mr Ruka who was then at work. Mr Ruka returned home during his lunch break and spoke with his son to explain how dangerous it was, and in the course of disciplining him had heated a cigarette lighter and placed it on “D”’s hand to cause a ‘smiley’.  The police attended and spoke with Mr and Mrs Ruka about the incident, but no further action was taken. The records indicate that child protection authorities were satisfied to work with the family in relation to parenting issues.

1. Mr Ruka in his evidence confirmed that what was alleged had taken place. He said he regretted his actions and accepts that what he did was not appropriate. Mrs Ruka in her evidence confirmed she had not been happy about the action Mr Ruka had taken to instil discipline on this occasion.

2. An incident of 24 October 2015 is documented at HB265 in which Mr Ruka’s son “D” and daughter “N” (then aged 5 and 4) were observed running on the road near traffic. Police attended and observed “D” to have a black eye and bruising on his legs. “D” told Police he had injured his eye by walking into a pole, but the question was answered in a way that triggered suspicion in the Police officer. When conveyed home, “D” denied living there and “N” said she didn’t want to go inside with her father, and the children appeared, in the opinion of the officer, to be terrified of their father, with “N” hiding on a neighbour’s front veranda. The report documents Mr Ruka has displaying hostility towards the Police when he answered the door, and the children were perceived to have complied with his instructions to go inside out of fear. The Police left the children with Mr Ruka, and intercepted Mrs Ruka at the supermarket who expressed relief that the children were safe but pointed out it wasn’t the first time they had left the backyard to play near the road. Mrs Ruka also is recorded to have said that “D” had run into a pole. It is documented that Mrs Ruka said that the children may have reacted the way they did out of fear of being disciplined (“given a smack”) for running away and playing on the road.

3. This matter was not expressly raised with Mr Ruka during the hearing, and counsel for the Minister recognised that of itself the incident report was inconclusive and could not justify a finding that an act of family violence had been perpetrated by Mr Ruka against the children. I consider that the material in this report is not sufficiently substantial to justify a finding that the children were subjected to acts of family violence by Mr Ruka at that time.

4. Records of an incident that occurred on or about 2 December 2016 appear from HB279. Teachers at “N”‘s school had observed that “N” ( who was 5) appeared to have a welt on the side of her face. When asked by a teacher if she had slept on it funny, she had replied ‘no, Dad hit it with a chain’. “N” was interviewed by child protection officers and Mr Ruka was arrested, appearing in court on 20 December 2016. The documentary records pertaining to the incident then however fall silent, and there is no evidence of the matter proceeding.

5. Mr Ruka gave evidence about the circumstances of his daughters, who I had noted did not live with him and his wife prior to his incarceration, and do not live with Mrs Ruka now.

6. Mr Ruka told me that “N” and “A” were the victims of sexual abuse when “N” was around the age of 5 and “A” was a baby, perpetrated by a person he had befriended and who he allowed to live in the family home. Mr Ruka explained that he had blamed himself for these events taking place under his roof, and he was greatly distressed in recounting the information to me. Mr Ruka’s father, Mr Smith, also gave evidence regarding these events in relation to “N”, as did Mrs Ruka. Mrs Ruka told me that Mr Ruka had attempted suicide on account of his distress over the incident.

7. I understand from Mrs Ruka and Mr Smith that the perpetrator of the offences against “N” and “A” was convicted and sentenced to 13 years imprisonment. Mr Smith gave evidence about certain connections between the perpetrator and authorities that motivated him and his wife to take “N” out of Western Australia to Queensland, particularly as the perpetrator had at that time been granted bail and was in the small community in which the family then lived.

8. Returning to the incident regarding the dog lead, Mr Ruka denied that he had struck his daughter with a dog lead, and said that his daughter had been manipulated into making that allegation by the perpetrator of the sexual abuse. Mr Smith told me that when “N” was relocated to Queensland she was interviewed by child protection officials in that state who had concluded after a specialist interview that the allegations had indeed been the product of manipulation by the perpetrator of the sexual abuse against “N”, and as a result all charges against Mr Ruka were withdrawn.

9. I am mindful that all the circumstances recounted in the preceding three paragraphs are the subject of oral evidence from Mr Ruka, Mrs Ruka and Mr Smith only. I am mindful that there is no documentary elaboration or corroboration. I recognise that it is by no means routine for the Minister to summons child protection authorities in case there might be relevant documentary evidence remaining undiscovered. Unfortunately, notwithstanding my instinctive wish to corroborate aspects of the evidence given their relevance and gravity, I have no scope to do so within the timeframes within which I am obliged to operate. It must be noted that these circumstances came to light in full detail only during oral evidence in the hearing, just over a week before I am obliged to make a decision in this matter, at the latest.

10. I accept the evidence given to me by Mr Ruka, Mrs Ruka and Mr Smith regarding the circumstances surrounding the crimes committed against “N”. I was able to observe Mr Ruka as he gave his evidence about these circumstances and it was obvious to me that he was recounting real trauma.

11. Mr Smith’s evidence is that the allegations regarding the dog chain were the product of manipulation by the perpetrator of sexual abuse on “N”, and it must be remembered that she was very young at the time. In light of Mr Smith’s evidence, which I accept notwithstanding I would prefer corroboration, I consider it would be unsafe to place adverse weight on the references to family violence contained in the various police records. Although by no means conclusively corroborative, the circumstances recounted by Mr Smith regarding the outcome of specialist child protection interviews undertaken in Queensland is consistent with the progress of the police activity directed at Mr Ruka in relation to this incident coming to an abrupt stop. I do not consider the documentary evidence regarding the circumstances of “N” alleging that she was struck by a dog chain by Mr Ruka justifies the finding that the conduct as alleged occurred in these circumstances.

12. The incident involving “D” receiving a burn to his hand, which Mr Ruka has admitted nonetheless falls within the definition of an act of family violence and I am to have regard to it. The Direction provides that in considering the seriousness of the family violence engaged in by the non-citizen, I must consider the matters provided for at cl.8.2(3) of the Direction.

13. As to the frequency of Mr Ruka’s conduct in this regard, this is the only incident that I am satisfied has occurred. I am not satisfied that there is evidence of repeated acts of family violence.

14. In relation to rehabilitation, I take into account that police and child protection authorities saw fit at the time not to take any further action in relation to this incident, and I accept that Mr Ruka regrets has action and accepts them in hindsight to have been inappropriate. I note that the Minister has brought my attention to Mr Ruka having completed the ‘ReSet Parenting’ program while in prison, but I know nothing more about that program. I accept Mr Ruka has genuinely accepted responsibility for this conduct, and understands the impact of his behaviour on his son.  

15. I have taken into account the evidence regarding family violence, and am satisfied on the evidence of the single act of family violence perpetrated on “D”, amounting to inappropriate and excessive discipline. I do not consider this instance of family violence weighs for or against the revocation of the decision to cancel Mr Ruka’s, noting in particular that the Direction, while recognising the seriousness of family violence, seeks to find a proportionate response to the seriousness of the family violence engaged in by the non-citizen.

    The strength, nature and duration of ties to Australia

16. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

    b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

    Immediate family

17. Mr Ruka has four minor children, and I will consider any impact of the decision on them and their best interests by reference to the next primary consideration.  I will also take into account the impact of any decision and the best interests of Mr Ruka’s step-grandchildren.

    Mrs Ruka

18. Mr Ruka’s wife, Mrs Ruka gave evidence to the Tribunal and provided a written statement to which I have had regard, and also a written statement[34] addressed to the parole board which is included in the Tribunal papers[35].

    [34] HB120.

    [35] HB152.

19. Mrs Ruka explains that she has been married to Mr Ruka for 15 years (at the time of her statement). Mrs Ruka also states that she believes Mr Ruka to be innocent. Mrs Ruka explains that before his incarceration, Mr Ruka worked full time, and she worked part time. Mrs Ruka explained that she and her children will be severely impacted if Mr Ruka were to be returned to New Zealand as they have built a life for themselves in Australia. Mrs Ruka said that her life will be torn apart because she would have to move back to New Zealand with him. 

20. In this regard, Mr Ruka’s evidence had been that he had not really discussed whether or not Mrs Ruka and his sons would return to New Zealand, but he did not think his sons would because there were better opportunities in Australia. Mrs Ruka’s oral evidence was that she confirmed she would return to New Zealand but perhaps not immediately. I proceed on the basis that at the time of my decision, the consequence on Mrs Ruka of refusing to revoke the decision to cancel  the visa in terms of whether she would remain in Australia without Mr Ruka or return to New Zealand is unsettled. I accept that in either event it would constitute a very substantial disruption to her life and would force upon Mrs Ruka very difficult choices. 

21. Mrs Ruka states that her extended family all reside in Perth, and I take that into account  in understanding the nature of disruption and the difficult choices any decision not to revoke  the visa cancellation would produce.

22. I accept that the impact of a decision to refuse to revoke the decision to cancel the visa would have a highly adverse impact on Mrs Ruka.

    Mr and Mrs Smith

23. Mr and Mrs Smith are Mr Ruka’s parents. They have provided a joint statement in these proceedings[36]and each gave oral evidence to the Tribunal. I note Mr and Mrs Smith are New Zealand nationals, but migrated to Australia prior to Mr Ruka.

    [36] HB18.

24. In their joint statement, they outline that they each have health conditions affecting their mobility and causing chronic pain. Immediately prior to Mr Ruka’s incarceration they moved from Queensland to Western Australia to be closer to Mr and Mrs Ruka. They currently live with Mrs Ruka and rely on her to an extent for some care and support. They indicate that they love their son very much and can’t imagine being in Australia with him back in New Zealand, pointing out that the entire extended family is in Australia. I note that both are expecting to have surgery in the future and had anticipated being cared for and supported by their son during their recovery.

25. I accept that the impact of a decision to refuse to revoke the decision to cancel the visa would have a highly adverse impact on Mr and Mrs Smith.

    Mr Ruka’s three adult step children: Marea, Djral and Angel

26. Mrs Ruka has three adult children from a previous relationship. Mr Ruka states that he has always been a family man even in relation to his step children when he and Mrs Ruka first got together. Neither Marea, Djral or Angel gave oral evidence to the Tribunal. 

27. A statement from Marea addressed to the parole board is available.[37] In this statement she says that Mr Ruka is as much her father as her biological father. A statement from Angel to the parole board is also available[38] She likewise states that Mr Ruka played a massive role as a dad to her when  she was growing up. I do not have a statement from Djral.

    [37] HB149.

    [38] HB150.

28. I accept that Mr Ruka’s adult step children are members of his immediate family, and I accept that a decision not to revoke the decision to cancel Mr Ruka’s visa will impact his adult step children adversely. 

    Mr Ruka’s sister Crystal-Lee Smith

29. Ms Crystal-Lee Smith did not give evidence to the Tribunal during the hearing but she did provide a statement to the parole board which is in the material before me[39]. I note that Ms Crystal-Lee Smith cares for Mr Ruka’s daughter “N”. In her statement, Ms Crystal-Lee Smith states in her letter that she could not imagine a life without Mr Ruka.

    Prison visitation and telephone contact evidence

    [39] HB151.

30. I have noted and taken into account that the records of visitation and telephone contact from the Department of Justice show that Mrs Ruka, “D” and “S” and Mr and Mrs Smith regularly visited Mr Ruka during his incarceration, and telephone contact with Mrs Ruka has been very frequent. This evidence tends to reenforce the impression I gained from Mrs Ruka’s evidence that she and Mr Ruka are very close, and Mr Ruka has a very close relationship with his two sons in particular.

31. I must take into account the strength nature and duration of Mr Ruka’s other ties to the community, and in doing so must have regard to how long Mr Ruka has resided in Australia, including whether he arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia; and more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

32. I find in this regard that Mr Ruka has resided in Australia for an extensive period of time – some 17 years - although he did not arrive as a child.

33. I accept Mr Ruka’s evidence that he has worked for the majority of his time in Australia in various roles, and I accept that he has contributed positively to the community through his employment. In this regard I note positive employment references provided by Mr Allen,[40] Mr Semini[41] and Mr Ruka’s curriculum vitae.[42] I have no evidence of any other specific positive contributions to the community.

    [40] HB193.

    [41] HB192.

    [42] HB198.

34. In relation to social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, I have evidence from Ms Tanya Henare. Indeed, Ms Henare’s links with Mr Ruka straddle family and social links.

    Ms Henare

35. Ms Henare is the partner of Mrs Ruka’s former partner. She explained in her written statement, and elaborated in her oral evidence, that her family and Mr Ruka’s family form an extended family ecosystem, pointing out hat her children referred to Mr Ruka and Mrs Ruka as Uncle and Aunty and Mr and Mrs Ruka’s children referred to her and her partner likewise. She describes the two families raising their children together. I accept that Ms Henare will be adversely impacted by a decision not to revoke the decision to cancel Mr Ruka’s visa. I will address the impact on her children later in these reasons.

36. In conclusion as to the strength nature and duration of Mr Ruka’s ties to Australia, I consider that his immediate family members, and in particular Mrs Ruka and Mr and Mrs Smith will be very adversely impacted by a decision not to revoke the decision to cancel his visa, and in the case of Mrs Ruka, this would be so regardless of whether she chooses to accompany Mr Ruka to New Zealand or remain in Australia. I accept that Mr Ruka has resided in Australia for a very long time, and as such his other ties to Australia are deep. His single instance of very serious offending occurred some time after his arrival in Australia, and there is evidence of his positive contribution to the community through his work such that full weight should be given to his other ties to the Australian community.

37. I consider that the strength, nature and duration of Mr Ruka’s ties to Australia weigh very heavily in favour of revoking the decision to cancel his visa.

    Best interests of minor children in Australia affected by the decision

38. Paragraph 8.4 of Direction No 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.

39. Mr Ruka has four children whose circumstances I will take into account individually. Mr Ruka has identified other children whose interests will be affected by the decision, and I consider that their interests are sufficiently similar that I may take them into account in two classes: namely Mr Ruka’s step-grandchildren (although that is a term I have attached, Mr Ruka refers to them as his grandchildren) and Ms Henare’s children.

40. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[43]

    [43] Direction no. 110, cl 8.4(4)(a)-(h).

    ·the nature and duration of the relationship between the child and the non-citizen, noting 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;

    ·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;

    ·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;

    ·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;

    ·whether there are other persons who already fulfil a parental role in relation to the child;

    ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·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

    ·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    “D”

1. “D” is Mr Ruka’s son. He is 14 years old. I am satisfied based on the evidence of Mr Ruka, Mrs Ruka, Mr Smith and Ms Henare in discussing the family dynamics that Mr Ruka is very close with “D”. I can infer from various sources in the evidence that Mr Ruka was an active parent throughout “D”’s childhood until his incarceration, and that he has maintained ongoing contact with “D” during his incarceration.

2. As was explained by Mrs Ruka, Mr Smith and Ms Henare, “D” in particular is in mid adolescence and at an age where he is acutely missing his father.

3. I find that the nature and duration of the relationship between “D” and Mr Ruka is very substantial, parental and has consisted of ongoing meaningful contact.

4. I consider that Mr Ruka is likely to play a positive parental role in the future, and accept that “D” has reached a critical age where Mr Ruka is able to provide a positive influence and role model before “D” turns 18. There are no relevant restrictions or court orders affecting Mr Ruka and “D” in this regard to my knowledge.

5. Mr Ruka’s prior conduct, as in the index offending, is not of a nature to have had a direct impact on “D” in itself, other than obviously the conviction and penalty has resulted in Mr Ruka’s incarceration and immigration detention and separation from “D”. In relation to the other matters pertaining to Mr Ruka’s conduct towards “D” when he was very young, discussed elsewhere in these reasons, I have no evidence to suggest there is any ongoing negative impact.

6. In the event that Mr Ruka and “D” were to be separated through Mr Ruka’s removal from Australia, I am satisfied the impact will be profoundly adverse having regard to the closeness and parental nature of the relationship. While it is true that contact can be maintained electronically and perhaps through irregular visits of “D” to New Zealand, I consider that contact of that nature will not be an adequate substitute and the effect of any separation will remain profoundly adverse to “D”.

7. Mrs Ruka fulfills a parental role in respect of “D”, and I note in that regard she has described how difficult it has been for her to do this on her own. Similarly, Mr Smith is “D”’s grandfather and appears to represent a positive role model in “D”’s life, albeit not a parental one. Likewise, Mr Ruka has an adult step son, but I have no detailed evidence addressing the nature of Djral’s relationship with “D”.

8. “D” has provided a statement to the Tribunal,[44]and was proposed by Mr Ruka to give oral evidence to the Tribunal in support of his statement. The Minister’s counsel did not require “D” for cross examination, and indeed the Minister accepts that “D”’s best interests are served by revoking the visa cancellation. In these circumstances I dissuaded Mr Ruka from calling “D” to give oral evidence.

   [44] HB16.

9. “D” states in his letter that he wants to have his father home with him, noting Mr Ruka’s incarceration and detention is the longest time he has been away since he was born. He said that his father would help him with anything due to his ADHD, and he has been struggling with his emotions since his father was incarcerated. “D” confirms that he has visited his father every two weeks.

10. In relation the evidence indicating that “D” was subject to family violence perpetrated by Mr Ruka, I have dealt with that issue fully above. I consider that the incident I am satisfied occurred was historical, is regretted by Mr Ruka and understood to have been inappropriate. I do not consider there is evidence to indicate that “D” will be at risk of family violence from Mr Ruka in the future.

11. There is no evidence of “D” experiencing any relevant trauma arising from Mr Ruka’s conduct.

12. I find that “D”’s best interests are served by revoking the decision to cancel Mr Ruka’s visa so as to permit Mr Ruka to remain in Australia with “D”. “D”’s best interests in this regard weigh very heavily in favour of revoking the decision to cancel Mr Ruka’s visa.

    “S”

13. “S” is Mr Ruka’s son. He is nine years old. Although “S”’s individual circumstances were not raised in the evidence to the same extent as those of “D”, I do not interpret this to mean that “S”’s relationship with his father is less close or less important. As with “D”, I can infer from various sources in the evidence that Mr Ruka was an active parent throughout “S”’s childhood until his incarceration, although this occurred when “S” was at a much younger age. Mr Ruka has maintained ongoing contact with “S” during his incarceration through regular visits.

14. I find that the nature and duration of the relationship between “S” and Mr Ruka is very substantial, parental and has consisted of ongoing meaningful contact.

15. I consider that Mr Ruka is likely to play a positive parental role in the future and there remains significant formative time before “S” turns 18. There are no relevant restrictions or court orders affecting Mr Ruka and “S” in this regard to my knowledge.

16. Mr Ruka’s prior conduct, as in the index offending, is not of a nature to have had a direct impact on “S” in itself, other than obviously the conviction and penalty has resulted in Mr Ruka’s incarceration and immigration detention and separation from “S” for a significant proportion of his childhood to date. 

17. In the event that Mr Ruka and “S” were to be separated through Mr Ruka’s removal from Australia, I am satisfied the impact will be profoundly adverse having regard to the closeness and parental nature of the relationship. While it is true that contact can be maintained electronically and perhaps through irregular visits of “S” to New Zealand, I consider that contact of that nature will not be an adequate substitute and the effect of any separation will remain profoundly adverse to “S”.

18. Mrs Ruka fulfills a parental role in respect of “S”, and I note in that regard she has  described how difficult it has been for her to do this on her own. Similarly, Mr Smith is “S”’s grandfather and appears to represent a positive role model in “S”’s life, albeit not a parental one. Likewise, Mr Ruka has an adult step son, but I have no detailed evidence addressing the nature of Djral’s relationship with “S”.

19. I find that “S”’s best interests are served by revoking the decision to cancel Mr Ruka’s visa so as to permit Mr Ruka to remain in Australia with “S”. “S”’s best interests in this regard weigh very heavily in favour of revoking the decision to cancel Mr Ruka’s visa.

    “N”

20. I have outlined above from paragraph [65] “N”’s circumstances. “N” did not live with Mr Ruka prior to his incarceration in the circumstances recounted above, and does not live in the home Mr Ruka would returned to if the decision to cancel his visa is revoked. She lives with Mr Ruka’s sister, Crystal-Lee Smith. I understand from Mr Ruka, Mrs Ruka and Mr and Mrs Smith that “N” and Crystal-Lee are very close. I did not understand this to be a living arrangement that anyone intends to disturb.

21. I understand that “N”’s living arrangements are with the consent of her parents, Mr and Mrs Ruka. There is nothing in the material before me to indicate that Mr and Mrs Ruka’s parental role in respect of “N” has been reduced or removed legally.

22. In his evidence, Mr Ruka expressed a wish to improve his relationship with “N”. In light of what has now been explained to me in relation to what has happened to “N” and the profound impact the circumstances also had on Mr Ruka in his perception of his role as her parent, I recognise that I have barely scratched the surface in understanding the complexities associated with the relationship. Having made that observation however, the evidence does not indicate that the relationship between Mr Ruka and “N” is a negative one. Mr Ruka explains he speaks with “N” on the phone, and I note that “N” is in the care of her paternal family members.

23. I am satisfied that the relationship between Mr Ruka and “N” is long-standing and substantial, notwithstanding that “N” ceased to reside with Mr Ruka in the circumstances described elsewhere in these reasons. I am not aware of any relevant restrictions or court orders restricting or altering Mr Ruka’s parental role in a legal sense, again recognising that practically he does not perform the parental role as “N” lives with his sister.

24. I consider it is probable that Mr Ruka will play a positive role in “N”’s future, although it would appear to be unlikely to be parental in nature, in the sense of providing day to day care, given the stability of “N”’s living arrangements which appear to be valued by Mr Ruka and his family. 

25. For the reasons expressed elsewhere, while there is evidence that the relationship between Mr Ruka and “N” came to the attention of child protection authorities and resulted in Mr Ruka facing charges, those charges were dropped and there is evidence before me of the circumstances in which they were dropped that I consider render it quite unsafe to place adverse weight on the allegations they pertain to. I do not have any other evidence that “N” has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by Mr Ruka, or has otherwise been abused or neglected by Mr Ruka in any way, whether physically, sexually or mentally. I have no evidence addressing whether or not “N” suffered or experienced any physical or emotional trauma arising from Mr Ruka’s conduct.

26. I do not have evidence directly from “N” in these proceedings as to her wishes.

27. I find that “N”’s best interests are served by revoking the decision to cancel Mr Ruka’s visa so as to permit Mr Ruka to remain in Australia with “N” in order to improve and invest in his relationship with her in the difficult circumstances he has recounted. “N”’s best interests in this regard weigh very heavily in favour of revoking the decision to cancel Mr Ruka’s visa.

    “A”

28. I record that I find myself in somewhat of a vacuum of evidence about “A”’s circumstances and remain troubled that I have not had full disclosure of her circumstances. What I know about “A”’s circumstances was largely drip-fed to me by Mr Ruka and his witnesses.

29. I learned in the course of the hearing, largely by a chance remark made by Mr Ruka, that “A” has been adopted by his sister in law. I further learned that Mr Ruka and his sister-in-law do not speak and I perceived there to be significant hostility towards his sister-in-law, although it is potentially understandable if elements of the version of events presented to me were to be accepted.

30. The evidence given by both Mr Ruka and Mrs Ruka as to how and why “A” came to be living with her maternal aunt and then adopted by her is problematic. Ultimately, I am by no means confident that I know why “A” has been adopted by her maternal aunt. I am conscious that me being ignorant of the true circumstances is not necessarily the same as those circumstances being relevantly adverse to Mr Ruka for the purpose of the decision I am charged with making.

31. Mr Ruka told me in his evidence when pressed that he didn’t really know whether his daughter “A” had been adopted or not, and I explained when engaging with Mr Ruka’s evidence in this regard that I had difficulty accepting that a father would not know whether or not parental rights in respect of his daughter had been extinguished or the circumstances in which that had happened. Mr Ruka indicated he felt he had not been consulted about that development. Mr Ruka declined to provide any contact information for “A”’s carer (his sister in law) to assist further information being obtained, explaining that he has no contact with his sister in law, and reacted defensively, perceiving in my enquiries about “A”’s circumstances to be an insinuation that he had been involved in the abuse perpetrated on “A”, which was by no means an insinuation intended. There is no evidence to suggest that Mr Ruka harmed “A”.

32. Mrs Ruka’s evidence about these circumstances cannot be accepted. She explained that her sister had attempted suicide, and the conclusion of the family had been that the reason she had attempted suicide was that she was lonely, and to address this “A” (who was 3 or 4 at the time) was sent to keep her company. According to Mrs Ruka, in due course, Mrs Ruka’s mobile telephone came to be in the possession of her sister, and it was during this period the sister had brought proceedings in the Family Court of Western Australia. Mrs Ruka could not or would not assist me by explaining her understanding as to the grounds relied upon for any such application.  

33. According to Mrs Ruka, when the court attempted to contact her about the matter by telephone, she did not respond because the phone was with her sister, and in those circumstances she and Mr Ruka were permanently stripped of their parental rights by the Family Court of Western Australia in their absence. Mrs Ruka said she had not subsequently appealed the orders once she came to know about them because she did not know how.

34. I do not accept this evidence because I consider the circumstances recounted by Mrs Ruka as to why “A” was sent to live with her aunt are implausible, and likewise I do not accept that a court would make permanent orders of that gravity in the circumstances recounted. Perhaps some parts of the story are accurate, but I am not satisfied it is complete. Finally, even if the court were unaware that the parents of a child had not been served or notified of the proceedings and made the orders, I do not accept that a parent who learned of the orders being made in those circumstances (without more) would then do nothing about it. Clearly, there is more to “A”’s circumstances than has been disclosed to me.

35. The Minister’s solicitor and the Tribunal took steps to obtain further information about the circumstances but these measures are constrained by the strict time limits within which I must complete the review. No provision exists in the legislative scheme for me to extend that period even where very relevant information comes to hand late, obvious channels of enquiry are available to obtain further information and corroboration, and all that is needed is a little further time.

36. Mrs Ruka was recalled in the hope that she might provide contact details for her sister so the Minister’s counsel could approach her to see if she had relevant evidence for the proceedings. Mrs Ruka declined to provide those contact details until checking with her sister. Mrs Ruka subsequently contacted the Registry and advised that her sister had declined to make her contact details available.

37. The Tribunal issued summonses to the Family Court of Western Australia on application by the Respondent to produce the court orders and originating process and supporting affidavits, but I withdrew the summons on 3 February 2025 upon noting that the despite the urgent nature of the enquiry, I may not impose a timeframe for compliance with the summons that is less than 14 days without the consent of person being summonsed.

38. Nonetheless, the court provided a copy of orders confirming that on 2 February 2018 the Court in chambers ordered that Mrs Ruka’s sister have sole parental responsibility for “A”. The orders do not identify the grounds or basis for the order being made, or the circumstances in which it was made in chambers. It is not expressed on its face to have been made by consent per se.

39. I did not consider it necessary to reconvene the hearing to put that document to Mr Ruka, as was appropriately suggested by the respondent, as evidence that Mr Ruka’s daughter had been ‘adopted’, in the sense that his parental rights had been extinguished by a court, was squarely canvassed during the hearing after Mrs Ruka gave that evidence, and the court order merely confirms what Mrs Ruka’s evidence was by way of documentary evidence. The court order itself provides no further particulars as to the circumstances.

40. In relation to “A” therefore, and proceeding only with limited evidence, I consider that the nature and duration of the relationship between “A” and Mr Ruka is a disrupted one in circumstances essentially unknown to me, other than “A” was the victim of sexual abuse when she was very young, and Mr Ruka was not the perpetrator. It is not clear to me whether those circumstances and “A”’s current parenting and living arrangements are related in any way.

41. The evidence indicates there has a long period of absence and limited meaningful contact between Mr Ruka and “A”. While Mr Ruka is “A”’s parent in the natural sense, he no longer has a parental role in respect of her, with sole parental responsibility for “A” ordered to be with a person with whom Mr Ruka has no contact.

42. I have no basis to presume, on the limited evidence before me, that the situation in that regard will change. I consider it unlikely that Mr Ruka will play a positive parental role in the future, having regard to the terms of the order and his expressed unwillingness to make contact with “A”’s legal guardian.

43. I have no evidence addressing the impact of Mr Ruka’s conduct (that is, the index offending) on “A”, but I note the date of the offending pre-dates the date of her birth. I do not consider there is likely to be any future conduct on the part of Mr Ruka that will have a negative impact on “A”.

44. I consider that it is most likely that Mr Ruka and “A” will remain separated regardless of the decision I make in these proceedings. I take into account that Mr Ruka and “A” will be able to maintain contact in other ways if such contact is mutually desired and permitted by “A”’s guardian.

45. I take into account that, by court order, another person now fulfills a parental role for “A”.

46. Although my understanding of the full circumstances in which “A” came to be the subject of the court order of 2 February 2018 is incomplete, there is no evidence demonstrating or pointing towards those circumstances arising out of “A” being, subject to, or exposed to, family violence perpetrated by Mr Ruka or otherwise being abused or neglected by Mr Ruka in any way, whether physically, sexually or mentally. Likewise, I have no evidence that “A” has suffered or experienced any physical or emotional trauma arising from Mr Ruka’s conduct.

47. “A”’s views are unknown to me, as are the views of the person now fulfilling the parental role in respect of her.

48. On the evidence before me, I am not satisfied that “A”’s best interests are affected by the decision to revoke or to refuse to revoke the decision to cancel Mr Ruka’s visa in circumstances where he no longer has a parental role in respect of her and has indicated he is not inclined to have contact with the person who does have that role. In the absence of further particulars about the circumstances in which “A”’s living arrangements and the orders of 2 February 2018 came to be made, I am not satisfied to find that it is in “A”’s best interests that Mr Ruka remain in Australia or otherwise.

    Mr Ruka’s step-grandchildren

49. Mr Ruka has five step-grandchildren ranging in age from 9 to 2[45]. All these children live with their parents who are Mr Ruka’s step children and their respective partners. Although Mr Ruka has not met the youngest of these children on account of his incarceration, Mr Ruka described having had a positive grandparental role in respect of the children born before his incarceration and an intention to develop one with the child he had not met. I accept Mr Ruka’s evidence in this regard noting that I have also observed that he generally has a positive and close relationship with his step children.

50. In respect of each of the children, whose interests I find do not differ, I find that Mr Ruka has or will have a positive relationship as a grandparent with a degree of meaningful contact. Mr Ruka will not play a positive parental role in respect of any of these children, but will play a positive grandparental role which is also to be valued, and I note all these children are quite young.

51. There is no evidence of any adverse impact on these children by Mr Ruka’s prior conduct (none were born at the time of the index offending). I am not satisfied Mr Ruka is likely to engage in conduct that will adversely affect the children or expose them to the various kinds of harm referred to in the Direction. I consider separation from Mr Ruka will be adverse to these children having regard to the positive grandparental role I am satisfied he will play in their lives, but this could be ameliorated to an extent by maintaining contact in other ways.

1. Overall, I find in respect of each of these children that their best interests are served by revoking the decision to cancel Mr Ruka’s visa as it will best serve their interest in maintain in a positive grandparental relationship with him and facilitate regular in-person contact. However, as the nature of the relationship is grandparental, I consider that the best interests of Mr Ruka’s step-grandchildren weighs only moderately in favour of revoking the decision to cancel his visa.

   Mrs Henare’s children

2. As mentioned above, Mrs Henare provided a statement and gave oral evidence to the Tribunal. In her evidence she explained that Mr Ruka has an important role in respect of her children, which she describes as her children being Mr Ruka’s nephews and nieces. Mr Ruka did not identify these children as children whose interests are affected by the decision, but in light of Mrs Henare’s evidence it is appropriate that I consider their circumstances.

3. Mrs Henare’s children include twin boys turning 14 this year and a daughter turning 18 this year. Mrs Henare confirmed that these children live with her. She described the relationship between Mr Ruka and these children as being like a normal relationship between an uncle and his nieces and nephews, they would play basketball and rugby together, go camping and go to the beach, for example to spend Christmas together. She explained that Mr Ruka had been in their lives since she was pregnant with them.

4. As to whether she or the children had spent any time with Mr Ruka since his incarceration, Mrs Henare said they had not as they do not wish to intrude and reduce the time Mr Ruka spends with Mrs Ruka and his children. She explained that if Mr Ruka returned to New Zealand it would be a big loss for her children as Mr Ruka was another male role model available to them.

5. I accept that Mr Ruka has a relationship with these children of the nature described by Mrs Henare. I accept it is long-standing and substantial, but avuncular in nature and non-parental. I note that Mr Ruka’s incarceration has resulted in a long period with no contact.

6. Nonetheless, I am satisfied Mr Ruka has played a positive, albeit non-parental, role in the lives if these children, and would do so again. I note that as Mrs Henare’s daughter will shortly be turning 18, there is limited opportunity for Mr Ruka to play a positive role in her life if he is released before she turns 18, but I accept that the twin boys are at an age where the more positive male role models they have the better.

7. There are no relevant court orders and no evidence suggesting that Mr Ruka’s conduct has impacted on these children. I find that no likely future conduct on the part of Mr Ruka will adversely impact these children.

8. I accept the children will be disadvantaged somewhat if Mr Ruka is separated from them, but as his role is non parental and the children do have people performing that role, it is not a consideration that carries other than modest weight. I do however find that it is in the children’s best interest that decision to cancel Mr Ruka’s visa be revoked.

9. Overall as to the best interests of children, I find that this primary consideration carries very significant weight in favour of revoking the visa cancellation in order to protect the best interests of “D”, “S” and “N”.  The best interests of the other children contribute only minimal further weight in the context of the significance of the impact of the decision on the best interests of “D”, “S” and “N”. 

   Expectations of the Australian Community

10. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.

11. Paragraph 8.5(2) directs that 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.

12. Direction No 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’. 

13. Paragraph 8.5(3) of Direction No 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.

14. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached.

15. Mr Ruka has engaged in conduct identified in paragraphs 8.5(2)(c) by virtue of his convictions in that he has engaged in conduct amounting to the commission of serious violent crime against women. I have also found that Mr Ruka has engaged in an act of family violence, and strictly this invokes cl.8.5(2)(a).

16. I find the Australian community would expect that Mr Ruka’s visa would remain cancelled on the basis of the expressed norms provided for in the Direction. I consider that the expectation of the Australian community weighs against revocation.

    Other considerations

17. Paragraph 9 of Direction No 110 states:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    d)impact on Australian business interests

    Legal consequences of decision under section 501 or 501CA

18. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[46]

    [46] Direction No 110 para 9.1.

19. While this consideration in Direction No 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:

    ·Unlawful status;

    ·The likelihood of becoming subject to detention and/or removal;[47]

    ·Refusal of other visa applications and cancellation of other visas;[48]

    ·A prohibition on applying for other visas;[49] and

    ·Periods of exclusion and special return criteria may apply.[50]

    [47] Migration Act ss 189, 196, 197C, 198.

    [48] Migration Act s 501F.

    [49] Migration Act s 501E.

    [50] Migration Act s 503, special return criteria (SRC) 5001.

20. Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[51] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198 of the Act.

    [51] Migration Act s 15.

21. If the cancellation of the visa is not revoked, and subject to the discussion below regarding Mr Ruka having raised a fear of harm if returned to New Zealand, Mr Ruka will continue to be detained under section 189 of the Act for the purpose of effecting removal and will be removed from Australia to New Zealand as soon as practicable under section 198 of the Act.

22. As his country of nationality is New Zealand, and again subject to the discussion below regarding Mr Ruka’s claimed fear of harm, there is no evidence of any practical difficulty in effecting removal to New Zealand. I am satisfied that the legal consequences of a decision not to revoke the visa cancellation is that Mr Ruka will be removed to New Zealand.

23. Section 501E of the Act operates to very substantially restrict Mr Ruka’s ability to apply for another visa while in the migration zone. Furthermore, certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for ‘permanent’ exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.

24. At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, I mention the decision of Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003.

25. I understand that Rano has been appealed by the Respondent, but at the time of my decision it relevantly binds me. In that matter, the Court concluded that the applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa…and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.

26. As the practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account.

27. On 8 July 2024, Mr Ruka claimed, in response to a question whether he had any reasons why he could not return to his country of nationality, ‘that he owes gangs In New Zealand thousands of dollars in money before I left for Australia so I can’t go back’[52]. Mr Ruka elaborated on these claims at HB117 stating that he and his family would be in danger because he was unable to send money back to pay these people off.

    [52] HB131.

28. This claim was explored further in his oral evidence before the Tribunal. Mr Ruka maintained this claim in his oral evidence. In relation to the danger he feared he said ‘it could be anything’, and when pressed said he could be killed or bashed. When asked to provide further specifics, Mr Ruka said he would rather not get into it as it would just make the situation worse. Mr Ruka did state that he had borrowed money in 2000 and 2006. Mr Ruka attributes the change to his name as the reason why the gangs have done nothing about it in the last 18 years. As to why the New Zealand authorities could not protect him, Mr Ruka said they never really protect anybody, and he has seen on television shows what happens to people who snitch, and he believes the gangs could access him anywhere in New Zealand.

29. The situation where a claim is made that may give rise to international non-refoulement obligations is addressed at cl.9.1.2. of the Direction. The Direction provides that when raised, such claims must be considered.

30. Mr Ruka’s claims invite recognition of a non-refoulement obligation in respect of New Zealand through attempting to engage Australia’s protection obligations in respect of him. The Direction points out that subsection 197C(1) of the Act provides that it is irrelevant for the purpose of section 198 whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. The Direction specifically addresses circumstances where a non-citizen is covered by a ‘protection finding’ as defined in section 197C of the Act . In these circumstances, section 198 of the Act does not authorise or require removal of the non-citizen to a country in respect of which a protection finding has been made, meaning that a non-citizen cannot be removed to that country in breach of non-refoulement obligations even if an adverse decision is made under section 501 of the Act. They will instead remain an unlawful non-citizen and must remain in immigration detention unless and until they are granted another visa or are removed to a country other than the country by reference to which the protection finding was made. I take note of these matters.

31. Mr Ruka is not the subject of a protection finding.

32. The Direction goes on to state that where it is open for a person to apply for a protection visa, it is not necessary to consider non-refoulement issues in the same level of detail in the context of a section 501CA process (as here) as such issues will be considered in a protection visa application, where the process is specifically designed for that process. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed before consideration is given to any character or security concerns associated with them.

33. In Plaintiff M1/2021 and Minister for Home Affairs [2022] HCA 17 the majority of the High Court answered the question of law stated for the Court as follows:

    In deciding whether there was ‘another reason’ to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(b)(i) of the Migration Act 1958 (Cth), where the plaintiff remained free to apply for protection visa under the Migration Act:

    (1) the Delegate was required to read, identify, understand and evaluate the plaintiff’s representations made in response to the invitation issued to him under section 501CA(B)(b) that raised a potential breach of Australia’s international non-refoulement obligations;

    (2)  Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

    (3) to the extent Australia’s international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non- refoulement obligations on the basis that it was open to the plaintiff to apply for protection visa under the Migration Act.[53]

    [53] Plaintiff M1/2021 and Minister for Home Affairs [2022] HCA 17 at [42].

34. Thus, deferral of the assessment of whether the Applicant is owed non-refoulement obligations is ‘one available outcome’ for the Tribunal. However, before determining whether to do so, I am required to ‘read, identify, understand and evaluate’ Mr Ruka’s representations that raise a potential breach of Australia’s non-refoulement obligations.

35. In respect of a decision-maker’s approach to representations, the High Court said that what is necessary will depend on the ‘nature, form and content of the representations’ and that the ‘requisite level of engagement…will vary, among other things according to the length, clarity and degree of relevance of the representations’.[54]

    [54] Plaintiff M1/2021 and Minister for Home Affairs [2022] HCA 17 at [25].

36. I have considered the claims raised by Mr Ruka in relation to why he fears returning to New Zealand. I have engaged with those claims to the superficial extent that I can on the very limited particulars he has raised. I consider that Mr Ruka’s vague claims in their current level of detail, in respect of New Zealand, would almost certainly fail to engage Australia’s protection obligations in respect of him, and I do not consider they give rise to a real or substantive question as to whether a non-refoulement obligation may arise in respect of New Zealand and in respect of him.

37. Not only are Mr Ruka’s claims vague, but Mr Ruka’s unwillingness to expand on them even to a limited extent raise a real question as to whether they are genuinely held. To the extent that the claims have been articulated, they relate to historical circumstances, with an unsatisfactory explanation as to why the circumstances continue to give rise to a fear some 18 years later. Mr Ruka’s response directed towards why New Zealand authorities would be unable or unwilling to protect him from gangs was unpersuasive.

38. Nonetheless, having considered Mr Ruka’s claims, in the event that I decide not to revoke the decision to cancel his visa, it would remain open to Mr Ruka to apply for a protection visa, and in that sense I would defer the assessment of whether or not he is owed protection obligations on the basis that it is open to Mr Ruka to apply for a protection visa.

39. Having regard to the legal consequences of the decision, I have identified that those consequences would be short term immigration detention and then removal to New Zealand, subject only Mr Ruka’s entitlement to apply for a protection visa. I do not consider that anything arises from the analysis of the legal consequences of the decision that falls outside the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated. However, the (for all practical purposes) permanent exclusion of Mr Ruka from Australia as a legal consequence of the decision weighs heavily in favour of revoking the decision to cancel his visa.

    Extent of impediments if removed

40. Paragraph 9.2 of Direction No 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:

    (a)The Applicant’s age and health;

    (b)Whether there are substantial language or cultural barriers; and

    (c)Any social, medical and/or economic support available to the Applicant in their country.

41. Mr Ruka explained in his evidence that he has no family members or other contacts in New Zealand, with his entire extended family residing in Australia. He believes he will have nowhere to stay or live and would have trouble finding work. Mr Ruka also points to his health.

42. Mr Ruka is 42 years old, and possesses trade qualifications. Mr Ruka’s age would not serve an impediment to establishing himself and maintaining basic living standards. Mr Ruka expressed his concern that work suitable for him was not available in New Zealand, but I consider Mr Ruka’s qualifications and experience in warehouse managing, welding, forklift operation, rigging, dogging and retail would be relevant to the New Zealand economy. Through employment, Mr Ruka would be able to secure housing and maintain basic living standards in New Zealand. He would also have entitlement to access New Zealand’s social security system as any New Zealand citizen would. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[55]

    [55] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296. See also Webb v Minister for Home Affairs [2020] FCA 831 at [90], [99]-[100.

1. In relation to Mr Ruka’s health, medical evidence indicates that Mr Ruka has high cholesterol, high blood pressure and ischaemic heart disease, all treated through medication. Mr Ruka had a heart attack in 2020.

2. Mr Ruka reported to medical staff in immigration detention that he does not have a significant mental health history, but as referred to above Mr Ruka attempted self harm in the aftermath of his daughters’ sexual abuse coming to light. Mr Ruka was reported in medical documentation from the detention centre to be struggling with the stress of immigration detention and his predicament.

3. To the extent that Mr Ruka requires ongoing medical monitoring, treatment and medication in relation to his cardiovascular and mental health, I consider that such services essentially similar to those available in Australia are available in New Zealand. Mr Ruka’s health is not an impediment to removal.

4. Likewise, New Zealand language and culture while different in some respects to Australia, will not pose an impediment to Mr Ruka establishing himself and maintaining basic living standards in New Zealand generally or in the context of what is available to other New Zealand citizens. I note that Mr Ruka has identified the nationality of all of his family members as either New Zealander or Maori, notwithstanding that they reside in Australia.

5. The most significant impediment to Mr Ruka re-establishing himself in New Zealand arises due to the length of residency in Australia, and the absence of family and personal social support. The latter difficulties can reasonably considered to be temporary. I accept however that the immediate psycho-emotional shock of removal from Australia to New Zealand would create short term hardship for Mr Ruka.

6. Therefore I give some weight to this consideration in favour of revoking the decision to cancel Mr Ruka’s visa. The consideration however attracts only mild weight in my view.

   Impact on Australian business interests

7. Paragraph 9.3 of Direction No 110 states:

   (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

8. Mr Ruka did not advance a case in this regard, but did provide evidence of his personal employment history and evidence demonstrating that he may be a good candidate for a number of positions advertised online upon his release.

9. There is no evidence that an adverse decision under section 501CA of the Act would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

10. However, I have considered all the evidence and identified no particular impact on any Australian business interest if Mr Ruka were not to be permitted to remain in Australia, and indeed I am satisfied none has been claimed.

11. This consideration weighs neither for nor against revoking the decision to cancel Mr Ruka’s visa.

    CONCLUSION

12. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.

13. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).

14. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said:

    ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[56]

    [56] [2023] FCAFC 138, [23].

15. I find the guidance from the Court at paragraph [38] is particularly instructive:

    The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.

16. In my evaluation, I have identified that the best interests of Mr Ruka’s children “D”, “S” and “N” call for the decision to cancel Mr Ruka’s visa to be revoked and weigh very heavily in that regard. The expectations of the Australian community (as described in the Direction) and the seriousness of Mr Ruka’s index offending weigh in favour of non-revocation. However, in my view the low risk (in the sense of likelihood) of Mr Ruka repeating similar very serious criminal offending in the future means that the primary consideration of the protection of the Australian community does not in this case outweigh the desirability of giving effect to the best interests of Mr Ruka’s children “D”, “S” and “N”. I consider that giving effect to the best interests of these children in particular amounts to another reason to revoke the decision to cancel Mr Ruka’s visa.

17. The other considerations addressed in these reasons are either neutral in weight or do not fundamentally change the evaluative outcome of the overall evaluative task I have undertaken. In this regard, the adverse impact on Mr Ruka’s immediate family members reflective of the strength nature and duration of his ties to Australia tends to reenforce my conclusion that there is another reason to revoke the decision to cancel the visa, but it is the best interests of the children “D”, “S” and “N” that I consider in this matter to be the main reason I have set aside the decision to refuse to revoke the decision to cancel Mr Ruka’s visa. My assessment of a low risk of criminal recidivism gives me confidence to give effect to their best interests in the outcome to this review.

18. On 6 February 2025, I notified that parties that I had set aside the decision under review and in substitution decided that the cancellation of the Applicant’s visa was revoked.

211.    I certify that the preceding 210 (two-hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kennedy.

..................[SGD]...................................................

Associate

Dated: 12 February 2025

Date of hearing:	29 and 30 January 2025
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Mr Jonathan Djasmeini, Minter Ellison