Sciascia and Minister for Immigration and Multicultural Affairs - [2024] ARTA 22

Applicant:Premier Monshana Sciascia
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/5927

Tribunal:General Member S Fenwick
Place:Melbourne
Date:31 October 2024

Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa.

.................[SGD].......................................................
General Member S Fenwick
Catchwords
MIGRATION – mandatory cancellation of visa – national of New Zealand – Special Category (Class TY) (subclass 444) visa – drug and family violence offending – failure to pass character test – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – strength, nature and duration of ties to Australia considered – best interests of minor children considered – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND

Mr Sciascia applied on 15 August 2024 for review of a decision of a delegate of the Respondent Minister not to revoke the mandatory cancellation of his Special Category (Class TY) (subclass 444) visa. This decision was made under 501CA(4) of the Migration Act 1958 (Cth) (the Act), and followed the mandatory cancellation of this visa on character grounds under s 501(3A) of the Act.
This mandatory cancellation arose from Mr Sciascia being convicted in 2021 of drug offences, for which he received a sentence of three and a half years imprisonment. The Applicant also has another instance of offending being family violence conduct against a former partner, for which he received a Community Corrections Order (CCO) in 2019.
Mr Sciascia was born in New Zealand and came to Australia with his mother at the age of one, in December 1994, when she escaped a violent relationship. The Applicant experienced a somewhat unstable and unpredictable childhood before joining the workforce, primarily as a shearer. Drug and alcohol use and gambling were features of his life prior to his family violence offending in 2019. As a result of the COVID-19 pandemic, he was then prevented from pursuing his usual employment and went onto social security benefits. Mr Sciascia engaged in further drug use and also dealing, leading to his imprisonment.
Mr Sciascia was represented before the Tribunal, and lodged a Statement of Facts, Issues and Contentions (ASFIC), a report of Ms Alison Mynard, clinical psychologist, dated 7 October 2024 (Exhibit A1), and the Applicant’s statement dated 13 October 2024 (Exhibit A2).
The Respondent lodged a Statement of Facts, Issues and Contentions (RSFIC), documents pursuant to s 500 of the Act (G), and supplementary G documents in several bundles (SG). One of these bundles comprises records from immigration detention and carries overlapping number (S1-S5) with the primary SG bundle.
The following persons gave evidence at the hearing: Mr Sciascia; Ms Mynard; his mother, Mrs Whetu Sciascia-Kennedy; his brother, Mr Reginald Sciascia-Kennedy; his niece (Ms S); and two former employers, Ms Danielle Kenny and Mr Jamie Baulch.
LEGISLATION
As noted above, this matter involves mandatory cancellation of a visa upon character grounds. There are a number of means by which a person may be deemed to have failed the character test under s 501(3A) of the Act. As also noted, this matter involves a substantial criminal record (s 501(6)(a)) in the form of a sentence to a term of imprisonment of 12 months or more (s 501(7)(c)).
A person may request to have the mandatory cancellation revoked. Revocation may arise under s 501CA of the Act where the Minister, or decision-maker, is satisfied the person passes the character test, or that there is another reason the original decision should be revoked.
Written directions have been issued under s 499 of the Act which must be complied with in making a decision. Direction 110 (the Direction) is the present form of these directions, and it sets out principles at clause 5.2 which are to inform my consideration:
(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 noncitizen 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
The reasons below are structured around the primary and other considerations (cls 8 and 9 of the Direction), with reference as relevant to specific factors arising under each consideration.
ISSUES
The first issue in this matter is whether Mr Sciascia fails the character test. I have considered relevant written and oral evidence, including the national criminal history check (G6), and am satisfied that the Applicant has been sentenced to a term of imprisonment of 12 months or more, and accordingly fails the character test.
I must now consider the second issue, being whether there is another reason why this mandatory cancellation should be revoked. I will adopt the relevant considerations under the Direction as subheadings in giving my reasons below.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
With respect to the principal offending, for which Mr Sciascia was imprisoned, I note the following which I summarise from the reasons for sentencing in the County Court in mid-2021 (G7):
(a)the Applicant plead guilty to trafficking a commercial quantity of MDMA consisting of 119 grams of pure MDMA, where a commercial quantity is 100 grams, and to possessing related equipment;
(b)the MDMA was found in a car intercepted by police and the Applicant was in the company of a co-accused at the time, and the equipment was found in a search of his premises;
(c)the sentencing judge described the Applicant’s family as law-abiding and hard-working, but noted he had used MDMA from the age of 18, ultimately leading to commission of the offences;
(d)the sentencing judge noted the responsibility of the court to protect the community from the enormous harm caused by the distribution of illegal drugs;
(e)the Applicant’s prospects of rehabilitation were described as good; and
(f)a total effective sentence of three years was imposed on the first charge, noting that the maximum sentence available was 25 years, and 12 months on the second, noting the maximum sentence available was 10 years, with six months concurrent.
Mr Sciascia’s family violence offending consists of convictions in mid-2019 on two charges of unlawful assault and a charge of make threat to kill (G6). The circumstances are found in the preliminary brief (G8). The Applicant and the victim had been in a relationship for some time and on the night in question there was a party to celebrate a family birthday. The victim was to spend the night with Mr Sciascia, and one of her daughters with another relative elsewhere, but due to a disagreement at the function these arrangements were cancelled by Mr Sciascia. The disagreement centred on the Applicant’s displeasure at the victim’s behaviour with another relative.
Ultimately, following the conclusion of the function, Mr Sciascia assaulted the victim outside one property, pushing her onto the ground and taking off her top. Subsequently, when she sought to retrieve belongings from another property, Mr Sciascia threatened her with a baseball bat and also grabbed her around the throat in a further assault. It was in this second incident that the threat to kill was made.
The police issued a family violence safety notice immediately following the incident (S9), and an interim intervention order was subsequently issued in a Magistrates’ court (S10), followed by a final order valid for three years until mid-2022 (G28). Mr Sciascia’s Community Correction Order (CCO) commenced simultaneously and was subject to supervision and undergoing offending behaviour programs as directed (S15).
Authority was given to initiate contravention action in respect of the CCO, reportedly due to Mr Sciascia’s failure to attend two appointments, and failure to complete a treatment and rehabilitation condition (S35, S37, S40). Related material indicates limited transport options may have been a factor in his challenges in completing a Men’s Behaviour Change Program (S36). I understand Mr Sciascia was in custody in relation to the principal offending prior to the contravention action being resolved, but he appears to have been discharged from the CCO for not having complied with its terms (S44).
For completeness, I note that Mr Sciascia was convicted of offences involving abalone in 2017, but these did not feature substantively in the parties’ submissions.
Mr Sciascia addresses his offending in his first written statement dated 27 June 2024 (G10 [31]-[41]). He acknowledges gambling from an early age, and that it became problematic. He also acknowledges drinking and using MDMA from the age of around 18, and states his drinking got a bit out of control. Mr Sciascia states the relationship with his former partner was not a healthy one, and it was stressful. The Applicant also states he deeply regrets his actions, that it was out of character and that he considers he complied with the CCO.
With respect to his drug offending, Mr Sciascia states that he was prevented from continuing his usual shearing work during lockdowns in 2020. He states that he went on social security, his gambling increased, and he began a lifestyle of drinking and partying. Mr Sciascia describes this as a ‘really dumb’ thing to do, and he acknowledges that drugs ruin people’s lives. He also states that his time in prison opened his eyes to how serious the drug problem is.
At the hearing, Mr Sciascia stated that he had never been violent in his life until the incident in 2019. He stated that until he started counselling, he did not know that such behaviour was there (within him). The Applicant stated the drug offending arose from a period of partying, and trafficking was an effort to ‘good bloke’ himself.
In cross-examination, Mr Sciascia acknowledged his co-offender’s young daughter was in the car when they were arrested, accepting that this would have been traumatic for her. Mr Sciascia stated that one element of the police summary about the family violence offending was not correct, but otherwise accepted the elements of the incident as described.
For the Applicant, it was submitted that both of Mr Sciascia’s instances of major offending are considered serious under the Direction. However, it was submitted the drug offences were at the lower end of the spectrum, taking into account the volume of drugs involved and the sentence imposed. It was also submitted his domestic violence offence was a single instance, to which he plead guilty. It was contended his criminal history is limited.
The Respondent submitted that the sentence imposed for the drug offences should be considered significant, in part simply because imprisonment reflects the objective seriousness of offending. It was also contended that crimes of violence against women are to be considered very serious.
The Direction does specify that crimes of violence, or crimes of violence against women should be considered very serious, and I make this finding in respect of Mr Sciascia’s family violence offending [cl 8.1.1(1) a)]. I also consider it reasonable to find that his drug offending should be considered serious offending, based upon the findings of the sentencing judge [cl 8.1.1(1) b)].
Otherwise, I note that his offending history is largely confined to these two instances and there is no increasing trend of seriousness or repeat offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
As noted, the sentencing judge considered Mr Sciascia’s prospects for rehabilitation as good, against a relatively modest amount of background information about the Applicant. Mr Sciascia provides extensive personal background in his first statement (G10 [6]-[30]). This includes a personal history of abuse and controlling behaviour from partners of Mrs Sciascia-Kennedy, the death of close family members, and his older brother’s imprisonment when the Applicant was about 18. I noted above also Mr Sciascia’s history of gambling, alcohol, and drug use.
In this statement Mr Sciascia addresses his engagement with a process of rehabilitation; [42]-[62]. He acknowledges limited engagement with rehabilitation in prison, where he continued to gamble. The Applicant states he has never previously had psychological support but considers now that his issues arise from trauma growing up. Mr Sciascia states that through counselling he has come to own everything he has done. He also states that he was unable, for various reasons, to compete programs available in prison, but undertook a large amount of personal reading, helping to change his mindset.
Mr Sciascia also declares in his statement also that he has now ceased gambling, appreciates that it was a form of escape, and has sought professional assistance in immigration detention. The Applicant states he has not used alcohol or drugs since being in prison and has undertaken phone-based counselling with Western Health. Mr Sciascia states further he has undertaken a number of counselling sessions with the Men’s Referral Service and here has spoken about his family violence offending. Looking to the future, he identifies family and community connections as important, plans to live with his parents or with his brother, intends to immediately return to the shearing trade and to continue with various support services ([63]-[64]).
Mr Sciascia provides further, detailed statements about his rehabilitation in his second statement (Exhibit A2) and provides supporting evidence (G25, G26). The Applicant also responds here to conduct matters raised in material produced under summons [47]-[52]. He states here that he was not involved in any violent incidents and denies having been involved in an arrangement with other prisoners to smuggle drugs. Further, Mr Sciascia acknowledges not complying with his CCO, noting transport options restricted his capacity to engage [61]-[63].
At the hearing, Mr Sciascia described his family violence conduct as ‘gross’, and it did not reflect the person he wanted to be, because he had seen that kind of behaviour in his own life. He stated that he had seen the victim since the offending and had spoken to her about it at length. Mr Sciascia’s evidence with respect to his alcohol and drug use, and his drug offending, was also consistent with that summarised above from his statements. He also affirmed his determination to live a productive life in the future.
Mr Sciascia was asked how he would deal with any possible future relapse in his addictive behaviours. He stated that he would reach out to support services that he had identified, and to friends and family. All other witnesses were questioned specifically about this. They all consistently expressed their strong personal commitment to support Mr Sciascia. The Applicant stated that preparing statements with lawyers had brought issues up that he then spoke to his mother about, and he described their relationship as being ‘super close’.
In cross-examination, Mr Sciascia admitted that he had in the past (during the period of the CCO) sought to minimise his offending. However, since then his whole life has ‘done a backflip’. I put to the Applicant that he had admitted gambling in jail and had been associated with an attempt at smuggling (S83). He acknowledged that he had ‘run’ gambling in prison (keeping books) and, contrary to his statement, that he was in fact implicated in the smuggling attempt. Mr Sciascia stated that he was placed in ‘solitary’ for some months after this was discovered, and this led him to focus more heavily upon his behaviour and attitude.
As noted, the witnesses at the hearing all spoke positively about future support for the Applicant, and they all appreciated the nature of Mr Sciascia’s offending and prior conduct. Multiple witnesses offered space in their home for him should he be released. Relevantly, Ms Kenny and Mr Baulch offered virtually immediate employment. In the case of the former, this was based in previous experience and long-term friendship. Mr Baluch offered on-the-job training in his tyre business.
I note the supportive personal and professional references in the materials (G10-G24).
Ms Alison Mynard
Ms Mynard reported on her assessment of the Applicant over two consultations in August and September 2024 (Exhibit A1). I summarise briefly as follows:
(a)during his early to mid-teen years the Applicant experienced a number of bereavements, including the suicide of a brother, and also commenced working to assist maintain the household, and then the death of his biological father, whom he had only met for a brief period on a return visit to New Zealand [11]-[18];
(b)his alcohol use reached very high levels at times, and he reported that gambling took over his life for a period of about ten years, and at times borrowed money to pay bills, and Mr Sciascia meets the clinical criteria for Pathological Gambling Disorder, now in remission [24]-[35];
(c)he reported periods of depression when younger and had feelings of helplessness particularly around his brother’s death, struggled with the loss of another brother who was deported after committing a serious crime, and the Applicant meets the diagnostic criteria for Complex Bereavement Disorder [36]-[40.1.2];
(d)Mr Sciascia has used substances to avoid facing a ‘tangle of emotions’ and his gambling addiction was another form of self-soothing [50]-[60];
(e)his risk of reoffending is moderate without engaging in any treatment, and his prospects of rehabilitation will improve with continued work on his mental health and counselling, but this may deteriorate in New Zealand if separated from family [61]-[62]; and
(f)recommendations are made for grief counselling, trauma informed therapy, building insight about family violence, and alcohol, drug and gambling counselling [63].

In her evidence, Ms Mynard explained that Mr Sciascia’s issues with grief were an underlying factor to his presentation and addictive behaviours. She confirmed that therapeutic intervention can help to resolve his disorders, and she considered he had already made quite an effort when they met. On the understanding that Mr Sciascia has now commenced counselling, Ms Mynard considered that his prospects of rehabilitation have further improved. In any event, I understood Ms Mynard to indicate that she was impressed by the Applicant’s emotional development through reading. She stated that she does not often see from offenders that they have taken in, and adopted, behavioural insights.
In cross-examination, Ms Mynard stated that personal change processes can be extremely variable. Some individuals continue to struggle with gambling but as the underlying issues have now been identified, and should symptoms of grief be dealt with, there will be no reason to gamble.
In response to questions from myself, Ms Mynard openly acknowledged that while she understood Mr Sciascia had committed family violence offending, this was not addressed directly in her report, and was not the subject of a separate risk assessment.
Other material
Mr Sciascia underwent a formal assessment for parole in September 2023 (S78). The report appears to have been authored by a parole officer, and records the Applicant as being assessed as at medium risk of general re-offending and moderate risk of violent re-offending. Despite this report making seemingly adverse findings about Mr Sciascia’s attitude and conduct in prison, a Review of Satisfactory Behaviour report (S80) provides a final behaviour rating of ‘satisfactory’, and a written annotation reads: ‘Sciascia is very social and well respected, respectful towards staff … never had an issue or witnessed any signs of aggression towards staff or prisoners’. I note that he was not granted parole by the Adult Parole Board (S81).
Other material (S78, S83) appears to support the Applicant’s evidence that he was separated from the prison community subsequent to being found to be associated with a drug smuggling operation. As I read the material the incident was logged or reported in April 2022 and he was not subject to a disciplinary hearing until August 2022.
Submissions and findings
At the hearing, submissions for the Applicant focussed on five contentions supporting the view that Mr Sciascia is at low risk of reoffending (which overlap to some extent with those identified in the ASFIC [25]-[34]. These are, in summary:
(a)he has developed genuine insight into his offending, particularly over the past two years, he understands the impact this has had;
(b)the Applicant has developed plans for his release, these are realistic and not merely abstract, and he has a very strong support network of family and friends including offers of employment;
(c)the psychological evidence supports the view that Mr Sciascia has undergone change and is in an ‘action’ phase of undertaking strategies to address his longer-term issues, against a background of no deep recidivist tendencies;
(d)professional support has already made a difference; and
(e)his time out of the community has allowed the Applicant to consolidate abstinence from addictive behaviours.
The Respondent’s written submissions note certain limitations outside the Applicant’s control that affected his capacity to engage in rehabilitation while in prison, and acknowledge counselling support recently undertaken (RSFIC [30]-[31]). Equally, at the hearing it was contended that the Applicant has only recently shown the motivation to engage in rehabilitation. It was also contended that his abstention is untested in the community, and his family support in the past did not prevent his offending. Written and oral submissions also emphasised the nature of the harm that would arise should Mr Sciascia reoffend.
I must give consideration to the Government’s view, as expressed in the Direction, ‘that the Australian community’s tolerance for any risk of future harm becomes lower as the potential seriousness increases’ [cl 8.1.2(1)]. I must consider the nature of the harm, and in light of Mr Sciascia’s offending history, it is reasonable to conclude that future offending may reflect past conduct and therefore the nature of any future harm is likely to be of violent conduct or harm from drug offences [cl 8.1.2(2) a)].
I have before me reliable evidence from an appropriate professional that I consider to be in most respects robust and well-informed. Here, the evidence points to a risk that is lower than moderate. Importantly, however, I note Ms Mynard’s assessment does not appear to address violent offending. The parole-related risk assessment was virtually untested in evidence, and it also does not appear to have been informed by the same information about the Applicant’s personal and psychological situation as that of Ms Mynard. However, a similar level of risk was identified in that report.
I am somewhat reluctant to place undue emphasis on a report that was not thoroughly tested. However, given the gap in Ms Mynard’s report, it must have some weight. Ms Mynard considers the root of the Applicant’s issues and addictive behaviour to be his unresolved grief and trauma and, as noted, she moderated her risk assessment based on her opinion about Mr Sciascia’s progress with rehabilitation. I consider it reasonable to similarly moderate the violent risk assessment in the parole report.
In summary, I consider there is a future likelihood of further offending but that Mr Sciascia has demonstrated that he has adequate insight into his needs and appropriate professional and personal support at hand to moderate that risk [cl 8.1.2(2) b)].
Summary finding
It was submitted for the Applicant that this primary consideration should not weigh heavily against revocation. The Respondent contends, however, that it should weigh heavily against revocation, noting also that the Direction provides that this consideration generally be given greater weight than other primary considerations [cl 7(2)].
I found above that Mr Sciascia’s comprised both serious and very serious offending. I have also found that there remains an ongoing risk of future offending. However, despite one weakness (in relation to limited consideration of family violence), the professional opinion given in this matter included a somewhat unusually positive reflection upon the progress made by the Applicant. I must, of course, weigh this together with the relatively late embrace of a fuller suite of rehabilitative steps.
Given the very confined scope of Mr Sciascia’s offending, his level of personal insight, and the relative strength of family and community supports, I find that the risk of further offending is not unacceptable. Accordingly, overall I find that this consideration weighs against revocation.
Family violence committed by the non-citizen
This consideration states the Government’s serious concern about conferring the privilege of remaining in Australia upon persons who have committed family violence [cl 8.2(1)]. The consideration is engaged due to the 2019 family violence offending set out above [cl 8.2(2)]. Family violence is broadly defined and includes conduct against an intimate personal partner [cl 4(1)-(2)].
Submissions for the Applicant centred upon the isolated nature of the relevant offending conduct, and the low sentence imposed. Submissions also embraced those made in respect of risk of reoffending. In short, it is contended Mr Sciascia has insight into the offending and its impact. It was contended this consideration be given minimal weight against revocation.
The Respondent’s written and oral submissions drew attention to the very serious nature of the family violence offending, involving violence and aggravating features. It was contended that Mr Sciascia did not engage positively with his supervision plan during the term of the CCO, and his insight has been a recent development. The Respondent contends this consideration weighs heavily against revocation.
The Direction requires consideration of certain specific factors. The evidence demonstrates that Mr Sciascia’s relevant conduct was very infrequent, based on the events of a single evening [cl 8.2(3) a)-b)].
Despite some apparent equivocation, I find that the oral evidence in particular demonstrates that Mr Sciascia has accepted responsibility for his conduct and appears to appreciate its impact [cl 8.2(3) c) i-ii)]. While there was no corroborating material, I accept his evidence that in the past he reached out to his former partner to discuss his conduct.
I have addressed above the Applicant’s efforts to deal with what I have accepted are behaviours underlying his past offending. As noted, I addressed the issue of violent conduct with Ms Mynard. I consider my findings about risk of reoffending to be relevant to, and support, a finding in this context that Mr Sciascia has taken concrete steps to address contributing behaviour [cl 8.2(3) c] iii)].
There were some concerning features to Mr Sciascia’s relevant offending, and I am unable to accept the Applicant’s submission that only minimal weight be afforded this consideration. This is because of the prominence given to family violence among the principles in the Direction [cl 5.2(8)]. However, I have also addressed here the specific factors that I must take into account under this consideration. Given the findings I have made about those factors I find that, overall, this consideration weighs against revocation.
The strength, nature and duration of ties to Australia
The written and oral evidence demonstrates that Mr Sciascia is part of an immediate family group comprising his mother and stepfather, several stepsiblings, and a number of children (as noted above). There are no less than seven written statements in support from among this group (G13-G19), and there was uncontested evidence about a wider family group across Australia.
Mrs Sciascia-Kennedy gave evidence with emotion about the peculiar bond between herself and the Applicant. This included in particular his immediate provision of support during a cancer diagnosis, as well as their generally strong and frequent contact over Mr Sciascia’s lifetime.
Mr Reginald Sciascia-Kennedy gave evidence about the critical role the Applicant played when the witness was younger. The thrust of the evidence was that Mr Sciascia took on effectively a parental role during the witness’ school years and provided much-needed practical and emotional support.
Mr Sciascia’s work history has been broadly outlined above and was confirmed in written and oral evidence from different sources. Ms Kenny also spoke to Mr Sciascia’s strong community engagement in his local area. She also added, during an emotional passage of evidence, that it would be financially challenging for her family to visit Mr Sciascia were he to be removed to New Zealand.
It was submitted for the Applicant that, having lived in Australia since the age of one, his only real family and community connections are to Australia. It was contended that he has a large and close family, with particular focus paid to his close relationship with Mrs Sciascia-Kennedy, and the links with his brother Mr Reginald Sciascia-Kennedy. Reliance was placed on the wider body of evidence about his employment and other community engagement, and it was submitted this consideration weighs heavily in favour of revocation. It was further contended that the Direction permitted more weight to this consideration due to the Applicant’s age on arrival and positive contribution while in the community.
The Respondent acknowledged Mr Sciascia’s extensive ties to Australia and contended that this consideration weighs in favour of revocation. However, it was contended this consideration should not outweigh those that weigh against revocation.
There is essentially no dispute in this matter about the nature, substance and significance of Mr Sciascia’s immediate family connections in Australia. I am satisfied that his removal would have a large emotional impact upon the family [cl 8.3(1)]. I am also satisfied that – particularly given the length of his residence – Mr Sciascia has demonstrably strong ties to, and has spent the bulk of his life, making a positive contribution to the Australian community [cl 8.3(2)].
In summary, I find that this consideration weighs heavily in favour of revocation.
Best interests of minor children in Australia affected by the decision
In his first statement (G10) Mr Sciascia identifies two nieces aged just under 18 with whom he has contact [70]-[74]: Ms S – currently aged 16; and Ms K – currently aged 16-17. In her statement (G20), Ms Kenny states she is married to Mr Sciascia’s cousin, and that the Applicant also has a relationship with her three children, now aged seven, four and two and a half years.
In his written and oral evidence, Mr Sciascia describes himself in his statement as being a kind of father figure for Ms S, in the near complete absence of her biological father. In addition to playing a large role in her life growing up, his evidence overall speaks to ongoing contact during his time in prison and immigration detention. He also expressed his concern for her mental health should he be removed to New Zealand, due to the particular nature of the bond between them.
Ms S provided a statement (G19) in which she explains that she considers the Applicant the closest thing she has to a father, against the background of what appears to be a somewhat unstable home life. Ms S also gave oral evidence at the hearing, supported by Mr Reginald Sciascia-Kennedy. In both oral and written evidence, Ms S describes the Applicant as having participated in school events, including Father’s Day, and generally ‘being there’ for her. In her statement Ms S describes the significant emotional impact upon her of Mr Sciascia’s incarceration, which also affected her mental health, and notes substantial absences from home of her own mother. In the hearing, Ms S stated she speaks nearly every day with the Applicant and they are making plans about what they will do ‘if he gets out’.
In her statement (G13) Mrs Sciascia-Kennedy states that the Applicant has been by the side of Ms S since she was born, and also describes the devastation of his incarceration [29]-[30]. Mrs Sciascia-Kennedy gave evidence at the hearing consistent with this, explaining that Ms S’s mother is presently absent from home pursuing employment. She stated that Ms S has struggled during the past four years, describing the Applicant as the ‘core of our family’. Similar evidence was given at the hearing by the Applicant’s brother.
In his first statement, Mr Sciascia states that he was close to Ms K when she was young and he still has a good relationship with her. In oral evidence the Applicant confirmed ongoing contact with Ms K and her brother, and stated he had a close relationship particularly with her older brother.
Mr Sciascia stated further in evidence that he knows Ms Kenny’s eldest child and has met her other two children. In her statement (G20) Ms Kenny states the Applicant has spent ‘considerable time’ talking with her three children. In evidence she confirmed that Mr Sciascia was in prison when her younger children were born, but he has since met them, and her eldest now calls him ‘Uncle Prem’.
The Direction requires a determination whether non-revocation is, or is not, in the best interests of a minor child affected by the decision, with individual consideration to the extent interests may differ [cl 8.4(1)-(3)].
It was submitted for the Applicant that considerable weight be given to the effect of the decision upon Ms S (ASFIC [50]). At the hearing it was contended that Mr Sciascia should be considered the primary positive parental figure for Ms S, and that interaction remotely from New Zealand would inevitably have a lesser quality to contact in Australia. It was also contended that consideration be given to the evidence that the Applicant is part of the lives of the other identified children and, overall, this consideration was a powerful factor in favour of revocation.
In written and oral submissions, the Respondent acknowledged in particular the important relationship between Mr Sciascia and Ms S. For this reason it was contended that this consideration weighs in favour of revocation, but should weigh neutrally in respect of the other children due to the presence of other parental figures.
While Mr Sciascia does not have a direct parental relationship with any of the five minor children identified, and other persons fill this role [cl 8.4(4) a) and e)], I consider that in respect of Ms S, the Applicant can be considered to have at least a quasi-parental role, akin to a father’s presence. It appears clear from the evidence Mr Sciascia will continue to play a positive and active role in her life, albeit that the Direction holds that consideration runs so far only as the child turns 18, being less than two years [cl 8.5(4) b]]. That said, the views of Ms S about the significance of the relationship are known, and I consider that separation through deportation would likely have a very negative impact upon her wellbeing [cl 8.5(4) d) and f)].
For these reasons, I find that in respect of Ms S this consideration weighs moderately heavily in favour of revocation. While I accept the Respondent’s position that the Applicant plays a different role in the lives of the other identified children, I consider that based upon the oral evidence that this factor should weigh slightly in favour of revocation in their cases.
Overall, and specifically due to the finding with respect to Ms S, I find that this consideration weighs moderately strongly in favour of revocation.
Expectations of the Australian community
It was common to the written and oral submissions of the parties that this is a ‘deemed’ provision. That is, in short, the Direction expresses the expectation that a serious breach of the overarching expectation that non-citizens obey the law triggers the further expectation they not be allowed to remain in Australia [cl 8.5(1)].
In both oral and written submissions (ASFIC [54]) it was put for Mr Sciascia that this consideration be given minimal weight against revocation. In support, reference was made to the principle that a higher level of tolerance may be afforded to persons who have lived in the Australian community their whole life, or from a very young age [cl 5.2(6)]. It was also submitted that, following the contentions with respect to risk of reoffending, that this is not a situation in which there is an unacceptable risk.
In the Applicant’s written submissions it was contended that the fact Mr Sciascia has lived in Australia for most of his life moderates the weight afforded to this consideration (ASFIC [53]). At the hearing, the Respondent contended that the danger associated with drug offending, and the inherent nature of family violence offending, raised serious character concerns in the terms of the Direction [cl 8.5(2) a)].
I am mindful of the High Court’s determination that this consideration must be weighed with the other relevant matters, consistent with the Direction at cls [6] and [7] (Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [52]). However, I am also mindful that the Direction offers the opportunity to consider the seriousness of character concerns arising when affording weight.
Given my findings above, notwithstanding Mr Sciascia has committed serous offending, including family violence offending, I consider it appropriate that this consideration weigh against revocation, but only to a moderate degree.
OTHER CONSIDERATIONS
The Direction, in the context of the statutory question to be determined, does not exhaust the possible range of consideration. Neither party made submissions about the legal consequences of the decision, and I do not consider that this issue rises for consideration given the circumstances of the matter, and accordingly it weighs neutrally.
Extent of impediments if removed

Much of the relevant evidence concerning Mr Sciascia’s life story has been set out above and does not need to be repeated. Movement records (G30) demonstrate that the Applicant has travelled back to New Zealand five times between May 2007 and October 2019, for periods of a week or two. He confirmed in evidence that he had made return visits, I understood, largely if not exclusively for family funerals.
I note that in his recent statement (Exhibit A2), Mr Sciascia specifically qualifies statements said to have been made in the course of a Parole Suitability Assessment [33]-[36]. This report indeed records what appear to be comments made by the Applicant somewhat positive about his likely deportation (S78, 339). In his statement, Mr Sciascia declares that he does not look forward to returning, and the circumstances that may have influenced his earlier views no longer pertain. This is consistent with his earlier statement (G10) where he declares he does not wish to be involved with his brother due to gang connections [79].
Mr Sciascia stated in evidence that should he be returned to New Zealand, he believes he could obtain work. As noted above, the evidence demonstrates that his older brother had been deported and is now in prison. Mr Sciascia acknowledged that he knows some relatives, principally his brother’s children, but is not in contact with them.
Mrs Sciascia-Kennedy gave evidence, with some force, about her strong desire for the Applicant not to fall into bad company in New Zealand. This stemmed, I understood, from her own motivations for leaving with her own children in the 1990’s, and also from her knowledge of the lifestyle of her other, incarcerated, son.
I noted above Ms Mynard’s view that Mr Sciascia may face challenges in New Zealand from separation from his family.
The Applicant’s written submissions note the above observations of Ms Mynard (ASFIC [56]). It was submitted at the hearing this consideration weighs in favour of revocation, given that Mr Sciascia has lived his entire life in Australia.
It is contended in the Respondent’s written submissions (RSFIC [53]-[58]) that Mr Sciascia has indicated he may seek mental health care support in the future, but would have access to the same medical and economic support generally available to other New Zealand citizens. It is also contended that he may face some emotional and economic hardship, but not in the long term. At the hearing, it was submitted that the Applicant’s return visits indicate some familiarity with New Zealand, and that this consideration may have limited weight in favour of revocation, but not such as to outweigh other considerations that weigh against.
The Direction establishes a relatively low bar by specifying that consideration be given to any impediments that may arise in establishing and maintaining ‘basic living standards (in the context of what is generally available to other citizens of that country)’ [cl 9.2(1)]. Given the Applicant’s age and general health, and his honest acknowledgement that he could find employment, the impediments are likely to be modest, in general.
That said, some weight needs to be given to the possibility that Mr Sciascia may struggle somewhat emotionally, and potentially also with his mental health, from what is likely to be a situation of social and family isolation. I consider the Applicant to have demonstrated in evidence a quite good grasp of his needs, but I also consider that he would need to reorientate his appreciation of resources available should he need clinical or therapeutic support.
Overall, I find that this consideration weighs in favour of revocation, but only to a moderate degree.
Impact on Australian business interests
I set out above relevant evidence from Mr Sciascia’s former employers. Despite prompting at the hearing, Ms Kenny’s evidence did not rise to the position that she considered there to be challenges in hiring workers in the shearing industry. The same proposition was not put to Mr Baulch, but he did indicate that the family business relies largely upon persons who receive on the job training.
Despite the written submission of the Applicant that the shearing sector is dominated by skills shortages (ASFIC [58]), the oral submissions by both parties at the hearing took a more pragmatic line. Neither party submitted that this consideration was necessarily enlivened on the evidence and having considered the wider body of written evidence in this matter, I agree.
This factor requires that consideration be given to the impact on Australian business interests and would generally only be given weight where a decision would significantly compromise a major project, or important services [cl 9.3(1)]. On the evidence, I do not consider that this consideration plays a role in this matter, noting also the Applicant’s absence from his primary industry role during his time in prison and immigration detention. Accordingly, I find that it weighs neutrally.
CONCLUSION
Of the primary considerations I have found that Protection of the Australian community from criminal or other serious conduct, Expectations of the Australian community, and Family violence committed by the non-citizen weigh against revocation.
I have also found that the primary consideration Strength, nature and duration of ties to the Australian community weighs heavily in favour of revocation, and Best interests of minor children affected by the decision weighs moderately heavily in favour of revocation,
Of the other considerations, I found that two weigh neutrally, and that Extent of impediments if removed weighs moderately against revocation.
The primary consideration Protection of the Australian community is generally to be given greater weight than the other primary considerations. However, I have not assigned this consideration particularly strong weight in the circumstances. I have also found that there is not an unacceptable risk of future offending. Finally, I note that the Directions permit a higher tolerance for criminal activity where a person has lived in Australia from a very young age.
For these reasons, I consider it appropriate in this matter to afford somewhat greater weight to the other primary considerations that weigh in favour of revocation. Accordingly, I find that there is another reason that mandatory cancellation of Mr Sciascia’s visa should be revoked.
DECISION
For the reasons given above, the Tribunal decides to revoke the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa.

103. I certify that the preceding one hundred and two (102) paragraphs are a true copy of the written reasons for the decision herein of General Member S Fenwick

................[SGD]........................................................
Associate
Dated: 31 October 2024

Date of hearing: 21-22 October 2024

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Melinda Jackson

Ms Maria Psihogios (MP Migration Law)

Solicitors for the Respondent:

Ms Felicidade Lay (Minter Ellison)