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

Seau and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3718 (14 November 2023)
Division: GENERAL DIVISION
File Number: 2022/6331
Re:Pritchard Junior Seau
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:14 November 2023
Place:Sydney

The reviewable decision dated 22 July 2022 is set aside. In substitution, it is decided that the cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa be revoked under section 501CA(4) of the Migration Act 1958 (Cth).
.................................[sgd]......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – visa was mandatorily cancelled previously and affirmed by a differently constituted Tribunal – remitted by Federal Court of Australia – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision set aside
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
Pavey and Minister for Home Affairs [2019] AATA 4198
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
14 November 2023
The decision under review

The Applicant, a 33 year old citizen of New Zealand, has resided in Australia since 2008. On 22 July 2022, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa (visa) under section 501CA(4) of the Migration Act 1958 (Cth) (the Act). That is the decision under review. The cancellation decision was made on 24 August 2021.
The Tribunal, differently constituted, affirmed the reviewable decision on 18 October 2022. Subsequently, the Federal Court remitted the matter to the Tribunal for determination according to law.
The issue to decided
Both parties accept that the Applicant does not pass the character test (defined in section 501(6) of the Act) because he was sentenced to a term of imprisonment of 12 months or more. He was sentenced to an aggregate term of imprisonment of 20 months. Therefore, the issue to be decided is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa.
Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight than other considerations, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[1]
[1] Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].
I will address each of the considerations that is relevant in this case after setting out a summary of the evidence that provides the context for the Applicant’s offending and his criminal history. The considerations family violence, impact on victims and impact on Australian business interests were not raised by the evidence or the parties and I do not address them.
Criminal history and other relevant events
The Applicant was born in Samoa and moved to New Zealand with his family when he was about six years old. The Applicant’s father murdered his mother on Boxing Day 2006. The Applicant came to Australia at the end of 2008.
The Applicant has been found to have committed the following offences as an adult and the following sentences have been imposed. All offences were dealt with by local courts in New South Wales except where specified. Other relevant events are also included.
The Applicant committed his first and only criminal offences in New Zealand on 21 August 2008. He was convicted of Other Common Assault and a breath alcohol offence, and fined $150 for the first and disqualified from driving for 8 months for the second.
He committed his first offence in Australia on 30 November 2011: Dishonestly obtain property by deception for which he was fined $200 and ordered to pay court costs.
On 7 October 2013 the Applicant committed the following offences: two Use unregistered…motor vehicle on road, two drive…while licence suspended – 1st off, and one Fail to notify authority of change of address within 14 days. He was fined for the two using unregistered vehicle offences, sentenced to a section 9 bond for 9 months for one driving while licence suspended offence, a section 10 bond for 2 years for the other, and a section 10A conviction with no penalty for the fail to notify address offence.[2]
[2] The sentences are imposed pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 26 July 2014 he committed a Shoplifting <=$2000 – T2 offence and an Assault occasioning actual bodily harm – T2 offence for which he was fined $100 and $1000 respectively.
On 13 December 2014 he committed the offence Break and enter house etc destroy etc property<=$60,000-T1. He received a section 9 bond for 2 years which included comprehensive conditions relating to counselling and drug and alcohol rehabilitation, and supervision by the NSW Probation Service. This offence was dealt with in court on 11 November 2015 at the same time as the Applicant’s first drug offence, committed on 23 September 2015: Supply a prohibited drug, for which he received a section 9 bond for 2 years in the same terms.
On 3 May 2016, the Applicant was charged with the offence of Drive motor vehicle while licence suspended – 2nd+off. On appeal, the charge was dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
From 2018, the seriousness and frequency of the Applicant’s criminal offending increased. They are drug related offences.
On 20 January 2018, the Applicant committed the offence Supply prohibited drug <=small quantity-T2.
On 25 August 2018, he committed the following offences: Deal with property proceeds of crime <$100000-T2; Possess prohibited drug and Supply prohibited drug >small & <=indictable quantity-T1.
The four offences were dealt with in court on 9 November 2018. The sentence for each offence was a 2 year intensive correction order (ICO) commencing 9 November 2018, concluding 8 November 2020, supervised by Community Corrections Service; treatment programs during the same period; rehabilitation/treatment.
In the local court on 15 June 2021, the Applicant was sentenced to imprisonment (aggregate) 20 months commencing 22 January 2021 concluding 21 September 2022, with a non-parole period of 12 months, for five offences. On appeal to the District Court against severity, on 2 August 2021, the non-parole period was reduced to ten months and all other orders confirmed.
The first two offences were Possess prohibited drug committed on 13 February 2020. One was possessing 8 grams of cannabis leaf discovered by police in the glove box of the car the Applicant was driving. The sentencing judge described this as a small amount. The other was possession of the prohibited drug alprazolam (6.5 tablets), commonly known as Xanax, in capsule form also found by police in the car. The indicative sentences imposed by the magistrate were imprisonment for one month for each of those offences.
On 10 May 2020, the Applicant was found in possession of 19 Xanax tablets in his duffle bag when he was at a shopping centre. The indicative sentence imposed by the magistrate was imprisonment for three months.
On 22 January 2021, he committed the offences of Supply prohibited drug>indictable & <commercial quantity-T1 and Deal with property proceeds of crime<$100000-T2. The police became suspicious after watching his activities and searched his car. They found $1,750 in cash and a total of 9.76 grams of cocaine.[3] The indicative sentences were imprisonment for five months for the deal with property proceeds of crime offence and 18 months for the supply offence.
[3] This is the total of the quantities of cocaine referred to by the sentencing judge on appeal which did not take account of a further 12 grams referred to in the NSW Police Facts Sheet; see [30] below.
He was arrested on 22 January 2021 and has not been in the community since.
At the conclusion of his non-parole period on 21 November 2021, the Applicant was moved from the custody of Corrective Services to immigration detention, where he remains.
Primary considerations
Protection of the Australian community
When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been law abiding, will respect important institutions, and not cause or threaten to harm individuals or the Australian community.[4]
[4] Direction 99, paragraph 8.1(1).
There are two factors in relation to the protection of the Australian community:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community, should the non-citizen commit further offences.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant’s offending history has been set out above. It began in New Zealand in 2008 and increased in seriousness and frequency over time, culminating in his most serious offending in 2021. His offences in New Zealand are classified as offences in Australia.
The Applicant accepts that drug related offences can be viewed seriously but pointed to the sentencing judge’s remarks (on appeal as to severity in 2021), to submit that the overall seriousness of the Applicant’s conduct was in the low range.
The sentencing judge concentrated on the supply and proceeds of crime offences ‘as these are the ones which provide the reason for the custodial sentence’. He found that the amount of drugs and cash was not ‘large’ but observed that the supply offence ‘involved dealing not just on one occasion to one customer but was intended no doubt to be supplied to a number of customers’ ‘for both profit’ and the Applicant’s ‘own use’ because the evidence indicated that ‘he had at the time a drug habit’.
The Respondent pointed out that the sentencing judge failed to take into account 12 grams of cocaine found in 20 small clear resealable bags mentioned in the NSW Police Facts Sheet. It submitted that he had ‘incorrectly’ referred to the total amount of cocaine. It is unnecessary to address that matter further. The sentencing judge did not alter the head sentence imposed by the sentencing magistrate who took into account the correct amount of cocaine.
The sentencing judge noted that the Applicant’s criminal history included the assault occasioning actual bodily harm and the break, enter and destroying property offences, and said that ‘what is particularly relevant´ is the 2015 supply illicit drug offence for which he was placed on a bond for two years, and on 9 November 2018 he was placed on an ICO for offences of supplying prohibited drugs and dealing with proceeds of crime. Therefore, greater weight needed to be given to the 22 January 2021 offences for deterrence and the protection of the community.
As the sentencing judge on appeal only varied the non-parole period and confirmed the head sentence and indicative sentences, the sentencing magistrate’s remarks are relevant. He did not err in considering the quantity of cocaine found by the police.
He said that “The offender’s record is one that affords him very little if any leniency’. The sentencing magistrate went through offences from the 2014 break and enter offence. He made the following remarks.
Being on conditional liberty (pursuant to the 2018 ICOs) was a statutory aggravating factor in relation to the three possession offences in 2020. He noted that it was the Applicant’s fourth supply prohibited drug charge.
He agreed that the objective seriousness of the supply matter was below mid-range. He said that ‘it is very much in the upper part of the low range’. The proceeds of crime matter was in the lower range. He commented that the supply and proceeds of crime offences were not aggravated by conditional liberty at that time.
He observed in respect of the supply matter that ‘s. 5 has been crossed’. Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court must not sentence an offender to full-time imprisonment unless it is satisfied, having considered all possible alternatives, that no other penalty is appropriate. The sentencing magistrate who dealt with the 2018 offences and imposed the ICOs also found that section 5 had been crossed.
Decisions in the Tribunal frequently refer to the same notion in terms that imprisonment is the last resort in the sentencing hierarchy and reflects the objective seriousness of the criminal offending.[5]
[5] For example, Pavey and Minister for Home Affairs [2019] AATA 4198.
I accept the Respondent’s contention that the 2014 break and enter offence was serious. The agreed facts were that the Applicant banged on the victim’s door at night, forced entry, and threw her property (metal bed frame, wooden chair, and metal gym bench) off the balcony of her apartment. He remained, drinking alcohol until police arrived. He was aggressive to police. The sentencing magistrate said that the offence was ‘particularly horrific’ and that ‘he has not crossed the [section 5] threshold…but he has gone so, so close’. The Applicant agreed with the magistrate that his behaviour was intimidating, showed a lack of respect for his friend’s property, and might have scared his friend.
The Applicant said that his possession of Xanax in February and May 2020 was for personal use to self-medicate. He used cocaine socially once or twice a month.
The Applicant’s criminal offending increased in frequency, particularly the possess drug offences and supply drug offences, and increased in seriousness, as reflected in his 2018 sentences to imprisonment to be served by ICOs and his sentences to imprisonment in 2021, particularly taking into account the indicative sentences.
The Respondent contended that the Applicant provided false and misleading information to the Department by not disclosing his prior criminal history on incoming passenger cards on 10 occasions from 10 May 2012 to 29 June 2013.[6] On those occasions, he had been convicted of and sentenced for the two offences in New Zealand in 2008 and one offence in 2011 in Australia. I give this matter little weight. The Applicant’s offending was minor and infrequent at that time. I accept that he did not understand that he had been convicted. He thought being convicted meant going to gaol.
[6] Direction 99, clauses 8.1.1(f).
A Notice of Intention to Consider Cancellation (NOICC) was issued to the Applicant on 26 February 2020. He made submissions in response. In a statutory declaration dated 27 March 2020 he claimed that he regretted his past and was ‘unqualifiedly remorseful’. He referred to the two year ICOs but said that his ‘sentence’ ‘run for only one year and ceased in November 2019 because of my commitment and persistency’. He went on to say that he was considered no risk to the community and ‘no longer require restrictions and reporting obligations’. There is no evidence when he was notified that the visa was not going to be cancelled. Taking into account his reoffending from May 2020, I infer that he was so advised before he reoffended.
He proceeded to commit his most serious offences in January 2021 for which his indicative sentences were imprisonment for five and 18 months respectively.
The Applicant agreed that he was on bail for the 2014 break and enter offence when he committed his first Supply a prohibited drug offence on 29 September 2015.
He was not convicted of an offence while the section 9 bond was in force from 2015 to 2017. He reoffended in January and then August 2018. The ICOs were imposed on 9 November 2018 for two years. The Applicant’s evidence was that that the ICOs ended on 20 November 2019 because of his consistency. He was under the impression that the did not have to report after that.
The Applicant has demonstrated a pattern of reoffending when on bail and after he is, or believes that he is, no longer constrained by a penalty or possible adverse consequence. That reflects a disregard for the law.
The nature and seriousness of the Applicant’s criminal and other conduct weighs against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
The Respondent contended that the nature of the harm to individuals should the Applicant engage in further criminal offending, is so serious that any risk that it may be repeated is unacceptable. It contended that any reoffending would have the potential to cause physical, psychological or financial harm to members of the Australian community. I do not accept the first contention but I do accept the characterisation of the nature of the harm that may be done if the Applicant reoffends.
His pattern of reoffending while on bail and after he believed that his penalty or possible adverse consequence had ended, and committing increasingly serious offences demonstrates that he was not remorseful.
Having considered the Applicant’s past offending and the offences before him, the sentencing magistrate on 15 June 2021 was left:
…somewhat guarded as to the offender's prospects of rehabilitation notwithstanding his age and the fact that he has some prosocial support. I am unable to find at this point in time that he is unlikely to reoffend. Much will depend ultimately upon what he does when he is released from custody, whether he observes the conditions of parole, whether he can remain away from the drug milieu.
I note that the Applicant’s sentence has ended. If released, he will not have the constraints of parole to assist him not to reoffend.
The sentencing magistrate remarked that a letter from the Applicant expressed his deepest regret, remorse and shame, for his actions. His Honour’s response was:
If there is remorse it came to the defendant after or at least on or after the day of hearing of the matters which was delayed by his plea of not guilty.
The sentencing magistrate considered a letter of support from a person to whom I will refer as the Applicant’s adoptive mother, Ms B. She wrote that the Applicant had shown a lot of remorse. His Honour remarked:
It is not indicated or articulated how that remorse has been shown. It is certainly not otherwise obvious.

The Applicant had expressed remorse on other occasions and then reoffended, for example: to Ms Younis, psychologist, recorded in her report dated 14 September 2015; in his statutory declaration dated 27 March 2020 in response to the NOICC, after which he reoffended on 10 May 2020 and most seriously on 22 January 2021.
The Applicant completed a rehabilitation program conducted by ONE80Teen Challenge Drug and Alcohol Service for nine months commencing in about July 2009 for various reasons, including to deal with trauma, drugs, alcohol, and depression.
In March 2013 he presented to High Street Youth Health Service requesting assistance to deal with his mother’s death. He had attended over 45 counselling sessions at this service by 14 September 2015. He agreed to a voluntary referral to the CREDIT program (Court Referral of Eligible Defendants Into Treatment). He was accepted as an outpatient by Parramatta Drug & Alcohol Service for relapse prevention. He was demonstrating a commitment to the process by making and attending appointments. He was being transitioned to another service for ongoing counselling around his family history and experiences of trauma. The Applicant told the first Tribunal hearing that he attended at least six drug and alcohol counselling sessions with that service and 50 sessions with the psychologist at the High Street Youth Health Service.
The Applicant acknowledged that despite attending those programs he went on to commit further offences. He claimed before the first Tribunal that it can be confident that he will not reoffend because he had lost his freedom and his life was on hold and it is not the person he wants to be.
The Applicant completed a number of rehabilitative courses while incarcerated and in detention. During the first Tribunal hearing he was asked about certificates of completion of nine different courses between 10 and 17 August 2022, two months before the first Tribunal hearing. He acknowledged he had done them to help his case.
During that hearing, he talked about attending drug and alcohol recovery meetings every Wednesday in detention. He claims that he has not used drugs since he was imprisoned. He agreed that it was easier to access drugs in the community than in detention.
In a Sentencing assessment report dated 7 November 2018, the Applicant acknowledged to Community Corrections that he was negatively influenced by antisocial peers and expressed a willingness to engage with interventions to address his pro-criminal associations and settings. He went on to reoffend.
Ms B and Ms H strongly supported the Applicant during the Tribunal hearing, as they did at the 2021 appeal hearing. He lived with them and Ms H’s daughter, T, for about seven years before he was incarcerated. Ms B regards him as a step-son, and Ms H regards him as a step-brother. He has a close bond with T. Ms AH, his partner of about three years and eight months, also supports him. They plan to make a life together and have a child.
The support of Ms B, Ms H and Ms AH was available to the Applicant during the periods those relationships have endured while he was offending. Their support did not deter him. They said that they will continue to support the Applicant very strongly. Ms H was aware of the Applicant’s offending and substance abuse to some extent before his incarceration. I am not persuaded that either Ms B or Ms AH was. I am not persuaded that any of Ms B, Ms H or Ms AH have deep insight into the Applicant’s issues with drugs and alcohol or his mental health issues or the extent and seriousness of his offending, or the task he must undertake to address those issues when he is in the community, as set out by Dr Yoxall and Ms Hayek, psychologists, discussed below. Previous interventions were not effective.
Carol Hayek, psychologist, prepared a report dated 22 September 2022 after completing a two hour assessment in person on 2 September 2022. The Applicant told her, of his long history of addiction to benzodiazepine (Xanax) which he used to manage emotional distress. It was a form of self-medication. He presented as genuinely remorseful and regretful. He said during the hearing that he replaced alcohol with Xanax after the 2014 offences.
Ms Hayek reported that the Applicant presented with a diagnosis of post traumatic stress disorder (PTSD) and comorbid presentation of Sedative, Hypnotic, or Anxiolytic Use Disorder, classified as moderate in sustained remission. In her opinion, he would benefit from ongoing psychological intervention to treat PTSD. She set out a Recommended Treatment Plan.
In Ms Hayek’s opinion, the Applicant was of low risk of reoffending. She also wrote that he does not pose a threat to Australian society and may make an active contribution once he has established remission from PTSD, due to his strong work ethic and his commitment and loyalty to those he cares for.
Dr Yoxall conducted a comprehensive psychological assessment of the Applicant by video conference on 9, 28 and 29 June 2023. She described in detail the Applicant’s extremely traumatic life that was marked by violence, abandonment and abuse, including details of the murder of his mother by his father in the early hours of Boxing Day 2006, and the adverse effects the Applicant had suffered, including not completing the final 13^th year of school in New Zealand.
He told Dr Yoxall that alcohol became a form of self-medication for him after the murder. He has a long history of drug and alcohol abuse from that time, including benzodiazepine dependence (Xanax).
The Applicant’s girlfriend at the time of his mother’s death became pregnant. The relationship broke down and he ceased contact with his son. He lived on friends’ couches for about a year before moving to Australia in 2008 where he also had unstable accommodation before moving in with Ms B and Ms H in about 2014 when T, Ms H’s daughter was three years old.
The Applicant told Dr Yoxall that he was ‘blind drunk’ and did not recall much about the offending in New Zealand. He had ‘blacked out’ from the amount of alcohol he had drunk. Similarly, he was intoxicated during the assault occasioning actual bodily harm offence in 2014 and had a limited memory of the incident. He was intoxicated during the break and enter offence in 2014.
The Applicant claimed before the first Tribunal that all his criminal activity was financially motivated. He agreed that his offending in 2020 and 2021 was in part due to the COVID-19 pandemic. He committed the 2015 and 2018 offences because he wanted extra money for lifestyle reasons. Apart from the COVID-19 pandemic period, the Applicant had been working since 2010. He told Dr Yoxall that his most recent offending was financially motivated. He lost his job during the COVID-19 pandemic and was unemployed for 15 months with no entitlement to Government support. Ms H’s work was also adversely affected and she was struggling financially and was worried about T. He wanted to help. Everyone was stressed.
In Dr Yoxall’s opinion, the Applicant has chronic and complex PTSD, secondary depression (now in remission) and substance use disorders (alcohol dependence and benzodiazepine dependence – now in sustained remission). She concurred with Ms Hayek’s recommendation in her treatment plan of a combination of psychological, psychiatric and drug and alcohol treatment, including drug urine screens.
The Applicant said that he has spoken to Ms H and Ms AH about what he has to do. The first step is for a GP to refer him to a psychologist.
During her oral evidence, Dr Yoxall said that the Applicant had not received adequate treatment for his PTSD and that protective factors such as Ms B, Ms H and Ms AH can be more effective when a person is in recovery than when they are offending.
Dr Yoxall concluded that the Applicant’s risk of general and violent reoffending ‘is now low but is dependent on his ability to manage his mental health and abstain from substance use’. If those factors changed then the risks would increase accordingly, but primarily in regard to general offending or drug offending rather than violent offending.
In her opinion:
The experience of being charged, convicted, being in prison, having his visa cancelled and then going to immigration detention has led to substantial self-reflection and maturation.
The Applicant has not experienced prison or immigration detention before. I accept Dr Yoxall’s assessment of the risk that the Applicant will reoffend. Whether he reoffends depends on his resolve and whether he has learned to regard the law. Whether he has learned from his imprisonment and detention is untested in the community. He will not be constrained by parole conditions when released.
The consideration protection of the Australian community weighs against revocation.
The strength, nature and duration of ties to Australia
The Applicant arrived in Australia when he was 18 years old. He is now 33.
Each of Ms B, Ms H, T and Ms AH will be adversely affected if the Applicant’s visa is revoked. They are all Australian citizens. He has supported each of them physically, mentally and emotionally during the time they have known him. He resided with Ms B and Ms H and T from about 2014 until about December 2020, shortly before he was arrested. Ms B suffers from a cardiac condition and Ms H from longstanding mental health issues. A letter from Ms H’s treating clinical psychologist dated 4 February 2021 was in evidence. The Applicant has helped care for T with whom he shares a close bond. Neither Ms B nor T has seen the Applicant in person since he was incarcerated. They maintain contact by electronic means. He has not seen Ms AH since the beginning of the year. There are restrictions. They have to sit two metres apart and cannot touch. They have video calls and text each other. Ms H visited him last year. T was at his last hearing.
At the previous Tribunal hearing, Ms AH gave the following evidence. She suffers from a lower back condition that limits her activities. Raising a child is going to be a risk to her spine and lower back. She had cervical cancer in 2019 and 2020 when it came back ‘twice as hard’ and she had an emergency operation. She does tests every six months and was told she needed a hysterectomy as soon as possible but refused. She told the nurse that she needed more time because she was planning to have another child and the nurse suggested that she wait another year, but if it came back, it would be necessary because of the effects it was having on her. Ms AH is putting herself at risk to have the child she had been wanting with the man she loves.
Ms AH provided a document showing that she was admitted for day surgery on 15 December 2020 but the nature of the procedure is not disclosed. She provided radiological reports from 2018 about her lumbar spine condition which included CT guided injection to a nerve root.
In her letter dated 27 September 2023, Ms AH wrote the following. She was diagnosed with CIN3 at the start of December 2020 with increasing cells. She has been in a relationship with the Applicant since March 2020. They met at a gym in September 2019 as a consequence of her back condition. He supported her through her diagnosis and subsequent emergency surgery scheduled for 15 December 2020. She did not follow her surgeon’s advice to have a full hysterectomy because she and the Applicant had started to plan their future which included marriage and starting a family. The Applicant was her only support and carer before he was incarcerated and resided with her for a month after the surgery. (The Applicant was arrested on 22 January 2021.) Ms AH has struggled since then and she will depend upon him if he remains in Australia. They are in contact daily. She wrote that she will be ‘truly destroyed if my soul mate was to be stripped away from’ her.
On 21 September 2022, she underwent psychological assessment by Sam Albassit who set out in detail her report of significant abuse, neglect, and abandonment over her lifetime. Mr Albassit wrote that Ms AH has exhibited major symptomatology of Complex PTSD for most of her life.
Ms AH reported that she and the Applicant started dating approximately April 2022 (sic). Their relationship is free of abuse. He treats her with respect and honesty. She reported that being separated from the Applicant had re-triggered her trauma, anxiety and feeling of abandonment. Her personal safety had been compromised.
Ms Albassit wrote that should the Applicant be deported, Ms AH’s poor mental health will be further exacerbated.
Ms AH told the Tribunal that it would be difficult for her to go to New Zealand because she has her job, her home and her two adult children in Australia. This is the only country she knows and she would struggle. Financially, it would be hard to keep travelling back and forth and it would affect her health adversely.
Ms AH’s sons were born in 2001 and 2002. Consent orders made in the Family Court in 2006 gave the father primary responsibility for them and set out the contact Ms AH was to have.
No medical evidence about Ms AH’s gynaecological condition was provided until after the second Tribunal hearing when Ms AH mentioned during her oral evidence that she needs to decide whether to have a hysterectomy by 20 October 2023. After the hearing, the Applicant provided letters from Ms AH and Dr A, a General Practitioner (GP) dated 5 October 2023, the day after the last hearing day.
The GP’s letter is to another doctor. The GP is seeking that doctor’s opinion and guidance on further management of Ms AH who has a history of CIN 2, CIN3 and severe PV bleeding and was recommended to have a hysterectomy which is scheduled for a discussion on 20/10/23. Ms AH has mixed feelings about the procedure because she is planning to conceive but her partner is in custody. She wants to delay any procedure which would jeopardise her ability to have children. CIN is the abbreviation for Cervical intraepithelial neoplasia.
The GP does not state that she is recommending a hysterectomy. She is reporting that that recommendation has been made and is seeking the guidance of another doctor. It is not clear whether the appointment for review is with the GP or the other doctor.
Ms AH wrote the following. I have been advised to have a hysterectomy urgently because of my CIN3 condition. The GP has told her that the longer she delays having the hysterectomy, the higher the chance of developing cervical cancer, however if there is ‘any way’ she can have a child if the Applicant is released, she wants to do everything she can to make it happen.
Ms AH’s evidence about the nature of her condition at the first Tribunal hearing was not correct. She has not been diagnosed with or treated for cervical cancer. Her recent evidence is that she was diagnosed with CIN3 in about December 2020 when she had to have urgent surgery. Her evidence is that the recommendation for a hysterectomy was made by her surgeon at that time. There is no medical evidence recommending a hysterectomy. The only evidence that Ms AH has been recommended to have a hysterectomy is from her. That has been her evidence since the first Tribunal hearing in October 2022. The following evidence provided shortly before the first hearing did not mention that recommendation: Ms AH’s statutory declaration sworn 29 September 2022 and Mr Albassit report dated 21 September 2022.
After the hearing, the Applicant provided a footnote in Supplementary Submissions dated 30 October 2023 to an article on a website called UpToDate. The title is Cervical intraepithelial neoplasia: Management. The article recommended treatment of CIN 3 is excision or ablation. The article states that CIN 3 is a direct precursor to cervical cancer, and with treatment, the risk of progression to cervical cancer is essentially eliminated and Hysterectomy is occasionally performed instead of excision or ablation but is unacceptable as a primary treatment for CIN in most instances.
I accept that Ms AH has the history set out by the GP but I am not persuaded that she is putting her life at risk by not having a hysterectomy. I find that Ms AH was treated appropriately for CIN 3 on 15 December 2020 during day surgery and has been regularly tested since then. I infer that the procedure undertaken at that time has been successful and the Applicant has not progressed to cervical cancer. I am not satisfied that an appropriately qualified doctor has advised the Applicant to have a hysterectomy.
On 21 September 2022, just before the first Tribunal hearing, the NSW Registry of Births Deaths & Marriages sent to the Applicant a receipt and a ‘Relationship Registration’ for his and Ms Harb’s relationship. The Applicant’s current marital status was ‘de facto’.
Ms B and Ms H seem to be unaware of the Applicant’s and Ms AH’s plan to make a life together. They seemed to understand that the Applicant was going to ‘return home’. Ms H had met Ms AH at prison a few times when they were visiting the Applicant. Their ties to the Applicant are strong.
Some of Ms AH’s evidence seems at odds with the strong feelings she expressed for him, her need for his support, that he was her only support after her surgery in December 2020, that she will be truly destroyed if my soul mate was to be stripped away from’ her, and her desire to have a child with him, for which she claimed to have risked her life by not having a hysterectomy.
That evidence includes her reasons for not joining the Applicant in New Zealand and her evidence during the hearing that the Applicant’s personality was sometimes ‘up and sometimes he’s down’ and since she was going through her own things in life, she didn’t want too much negative energy and information given to herself so she used to block things out and she has never asked full details of the Applicant’s offences because ‘she wasn’t really interested at that time’.
Ms AH did her best to assist the Applicant’s case, however I treat her evidence with some caution.
The Applicant has been a resident in Australia since 2008 and has worked from 2010 until sometime during the COVID-19 pandemic when he lost his job. He has contributed positively to the Australian community through his work and has a strong work ethic. However, he committed his first criminal offence in 2011 and his offending increased in seriousness until he was incarcerated. He did not spend his formative years in Australia. He has a job offer from a previous employer who provided written and oral evidence. His previous employer was aware of the Applicant’s recent offending but not of his lengthy history of offending. He found him reliable and honest.
The evidence suggests that the Applicant has limited prosocial ties to Australia apart from Ms B, Ms H, Ms AH, T, and his former employer.
The strength, nature and duration of ties to Australia weigh in favour of revocation.
Best interests of minor children
The only child in Australia who will be affected by this decision is T, who was born in 2010. The Applicant began to reside with Ms B and Ms H in about 2014. She is his ‘adoptive niece’. He has been physically absent from T’s life for two years and nine months as a result of his offending. She is now 13 years old.
The Applicant claimed that he is the only father figure to T, whose father committed suicide before she was born. The evidence of Ms AH, Ms B and Ms H was that the Applicant has a very strong bond with T. The Applicant drove T to school each morning, sometimes picked her up and looked after her during school holidays. Those tasks have necessarily been taken over by Ms B and Ms H since the Applicant was incarcerated.
Ms Kirlagitsi, psychologist, prepared a report dated 20 September 2022 in regard to ‘her client´ T, who had ‘accessed psychological services for the purpose of a mental health assessment and psychological therapy. T had attended two appointments. Ms H was also interviewed. She told Ms Kirlagitsi that the time when T’s maternal grandfather passed away was very difficult for T as she was very close to him. Since then, she has developed a very close bond with the Applicant. T spoke to the Applicant every three weeks and avoided visiting him.

In Ms Kirlagitsi’s opinion, T ‘faces socio-emotional challenges, as well as symptoms consistent with low self-confidence and self-esteem, as well as perfectionism. (The Applicant) seems to be a significant source of social and emotional support for (T), and his presence may aid in building her socio-emotional skills’ (Emphasis added.) She recommended ongoing therapy for T.
T’s views about the Applicant and her relationship with him, were demonstrated by her brief evidence at the first hearing, a letter, a drawing and a note wishing him happy birthday, and two other drawings showing the two of them and including in one, a dog. The letter began (the Applicant) ‘means the world to me’ and went on to set out things he did for and with her. Later in the letter, T wrote ‘He is like a dad to me and means the world to me’.
While in detention, the Applicant communicated with T by video calls. He agreed that he could do that from New Zealand. Ms Kirlagitsi’s evidence supports a finding that the opportunity for the Applicant to have in person contact with T would be preferable to contact by video calls.
T has not wanted to visit the Applicant. According to Ms H, T has only got as far as the carpark of the detention centre because it is too difficult for her. She saw him in person at the first Tribunal hearing in October 2022.
Ms H has always played the primary parental role to T despite her mental health issues and has the assistance of Ms B, T’s grandmother. It is five years until T turns 18.
The Applicant and Ms AH are planning a life together. Consequently, he will necessarily play a lesser role in the lives of Ms B, Ms H and T in the future.
The weight to be given to Ms Kirlagitsi’s somewhat qualified opinion, is reduced accordingly.
During the first Tribunal hearing, the Applicant claimed never to drink alcohol in T’s presence but then said he was never drunk in her presence. He said that he would drink alcohol in his own room. Ms H had said that he was intoxicated in T’s presence. He agreed that he blacked out when drinking alcohol and it would be risky for him to do that in the house with T.
Overall, the evidence does not suggest that his drinking has adversely impacted T over the years he had resided with her. As he will not be living with T in the longer term if he is released into the community, I give this concern negligible weight. However, his criminal behaviour and incarceration has adversely affected T, Ms B and Ms H by removing his day to day physical presence and assistance in T’s care.
The Applicant’s Statement of Facts, Issues and Contentions asserted that ‘The requirements of the Convention on the Rights of the Child are obvious and need not be repeated here. Plainly, this factor weighs very heavily in favour of revocation of the visa cancellation.’
The objects of the Act are set out in section 4. Relevantly, they include:
(1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
(2)To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain. (Emphasis added.)
I can discern nothing in the Act that requires consideration and/or application of the Convention on the Rights of the Child in addition to the relevant provisions of the Act and Direction 99. In any event, I was taken to no article of the Convention that required consideration beyond what is set out in Direction 99.
The best interests of T weigh in favour of revocation.
Expectations of the Australian community
The Applicant’s contention suggested that the Tribunal make its own assessment of the Australian community’s expectations in this case because of the low risk of the Applicant reoffending, his close family ties in Australia and the draconian consequences of the legislation.
He has engaged repeatedly in serious conduct in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[7] This expectation applies regardless of whether the Applicant poses a measureable risk of causing physical harm to the Australian community.[8]
[7] Direction 99, paragraph 8.5(1).
[8] Direction 99, paragraph 8.5(3).
Contrary to the Applicant’s contention, it is not for a decision-maker to make an assessment of the community’s expectations.[9] The Tribunal must have due regard to the deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[10] The decision-maker determines the appropriate weight to be given to this consideration.[11]
[9] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).
[10] FYBR at [75] per Charlesworth J.
[11] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].
The Applicant has a lengthy criminal history. He breached bail, bonds and ICOs. His offences increased in seriousness until he was incarcerated in 2021.
The expectations of the Australian community weigh against revocation of the visa cancellation.
Other considerations
Legal consequences of the decision
The parties accepted that the legal consequence of non-revocation of the Applicant’s visa would be that he would be deported from Australia and would be unable to return unless the Minister exercised the discretion to allow him to do so which seems unlikely.
No claims which may give rise to international non-refoulement obligations for protection were articulated in the proceeding before me. There was a vague claim raised before the first Tribunal which it addressed. For certainty, I find that the Applicant claims to fear physical harm from his father, who was released from prison about three years ago, and from his father’s immediate family, if he returns to New Zealand. His father has 11 brothers. He agreed that he could relocate to a different part of New Zealand where he would not be in contact with them.
The Applicant was most recently physically harmed by his fathers’ relatives when he was 15 or 16 years old. He has had no contact with his father since he was gaoled. He agreed that he was speculating that his father would harm him. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm.
The legal consequences of the decision weigh in favour of revocation.
Extent of impediments if removed
The Applicant is 33 years old and in good physical health, apart from a perspiration condition that causes him some embarrassment. In Dr Yoxall’s opinion:
Deportation would be psychologically devastating to (the Applicant) and would like destablise (sic) his psychological functioning and put him at risk of decompensation.
Ms AH said that she will not move to New Zealand for financial and family reasons as discussed earlier in this decision.
He will not have the in-person support of Ms B, Ms H, or T but will be able to maintain contact through digital means. I am satisfied that their support is very important to the Applicant.
As far as the claim that the Applicant will not be able to make a life with Ms AH and have a child with her, for the reasons given earlier, I treat her evidence with caution. I am uncertain whether Ms AH will remain in Australia if he returns to New Zealand. If their relationship is as strong as she claims, she is likely to join him. If it is not, he will not miss her support to the extent claimed.
He faces no substantial language or cultural barriers if removed from Australia to New Zealand.
For the reasons set out in the previous section, I give no weight to the Applicant’s claim to fear physical harm from his father or his father’s immediate family.
The Applicant has three brothers in New Zealand. At the first Tribunal hearing he said that he had not spoken to them since 2015. He only spoke to two of them. They have moved on, living their own lives. He does not know if they would help him if he reached out to them. He told Dr Yoxall that he has recently reconnected with his sister in New Zealand.
He has no contact with his mother’s family and despite his efforts, no contact with his son.
The Applicant will have limited, if any, support from friends or relatives if he returns to New Zealand.
He will be able to access social, medical, and economic support available to other citizens of New Zealand. He has work skills and a good work ethic.
This consideration weighs in favour of revocation.
CONCLUSION
The primary considerations protection of the Australian community and expectations of the Australian community weigh in favour of not revoking the visa cancellation decision. The primary considerations strength, nature and duration of ties to Australia, and the best interests of minor children in Australia, and the other considerations, legal consequences of the decision and extent of impediments if removed, weigh in favour of revoking that decision.
The considerations that weigh in favour of revocation outweigh the considerations that do not. There is another reason to revoke the cancellation decision.
DECISION
The reviewable decision dated 22 July 2022 is set aside. In substitution it is decided that the cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa be revoked under section 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

....................................[sgd]....................................
Associate
Dated: 14 November 2023

Date(s) of hearing:

3, 4 October and 2 November 2023

Solicitors for the Applicant:

Mr M Northam, Northam Lawyers

Solicitors for the Respondent:

Ms S Edmondstone, Minter Ellison

[2023] AATA 3718

14 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	3, 4 October and 2 November 2023
Solicitors for the Applicant:	Mr M Northam, Northam Lawyers
Solicitors for the Respondent:	Ms S Edmondstone, Minter Ellison