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

Simeon and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2998 (15 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4709
Re:Caine Simeon
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:15 September 2023
Date of written reasons: 19 September 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 27 June 2023 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.
...............[SGD].........................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No.99 – substantial criminal record – nature and seriousness of the offending – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
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
Emeritus Professor P A Fairall, Senior Member
19 September 2023
INTRODUCTION

The Applicant is a 37-year-old New Zealand citizen. On 19 June 2017, he was granted a Special Category (Temporary) (Class TY) (subclass 444) visa (the visa) on arrival in Sydney. He has not left the country since.
On 25 June 2021, he was arrested on an outstanding warrant relating to a fraud offence.[1] On 5 May 2022, he was sentenced to prison for several offences committed on 14 and 15 May 2021.[2]
[1] Supplementary G docs (SGD), 94.
[2] G11, 49.
On 11 May 2022, a delegate of the Minister (the delegate) cancelled the Applicant’s visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[3] The cancellation of his visa was required because he had a substantial criminal record as defined in subsection 501(6) and therefore did not pass the character test by reason of paragraph 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more.
[3] G15, 59.
On 24 May 2022, he was transferred to immigration detention. He was released on 27 December 2022 following the decision by the Full Federal Court in Pearson,[4] which held that an aggregate sentence was not a “sentence” for the purposes of paragraph 501(7)(c).
[4] Pearson v Minister for Home Affairs [2022] FCAFC 203; G16, 66.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into effect, reversing the decision in Pearson. The effect of the amendment is that “a person who has been sentenced to a term of imprisonment for a period of 12 months or longer, whether imposed as a sentence in respect of one or more offences, has a ‘substantial criminal record’ and fails the character test in s501 of the Migration Act.”[5]
[5] Aggregate Sentences Act 2023 (homeaffairs.gov.au)
The Applicant was re-detained in the Villawood Immigration Detention Centre awaiting the Tribunal’s decision on his application to revoke the mandatory cancellation of his visa. The Tribunal heard the matter on 11 and 12 September 2023. The Applicant was represented by Ms M. Mamarot and the Respondent by Ms K. Pieri. The Tribunal provided its one-line decision on 15 September. I now provide the written reasons for that decision.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a)Applicant’s Statement of Facts, Issues and Contentions (ASFIC) filed on 6 September 2023.
(b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed on 4 September 2023.
The Applicant’s materials:
(a)Applicant’s Tender Bundle (ATB) filed on 6 September 2023.
The Respondent’s materials:
(b)Section 501G Documents filed on 11 July 2023 (G Docs).
(c)Supplementary section 501G Documents filed on 5 September 2023 (SGD).
FINDING ON THE CHARACTER TEST
On 5 May 2022, the Applicant was sentenced for four offences to an aggregate sentence[6] of 17 months with a non-parole period of 11 months.[7]
[6] The sentencing court must indicate the sentence that would have been imposed if a separate sentence had been imposed, rather than the aggregate sentence: Crimes (Sentencing Procedure Act) Act 1999 (NSW), paragraph 53A(2)(b). Two of the offences were assigned eight months, and two were assigned four months.
[7] G11, 51.
The offences were: enter building/land w/i commit an indictable offence (indicative sentence of eight months); assault occasioning actual bodily harm in company (indicative sentence of eight months); and two counts of contravene prohibition/restriction in AVO (domestic) (indicative sentences of four months each). The offending occurred on 14 and 15 May 2021.
The sentence commenced on 25 June 2021 and concluded on 24 November 2022, with the non-parole period ending on 24 May 2022. In setting the non-parole period, the sentencing magistrate found special circumstances, stating:
In my view there are special circumstances here, including but not limited to the fact that he has spent approximately 102 days in isolation over the past 11 months, so I find special circumstances. There will be an 11 month non-parole period.[8]
[8] G11, 51.
The Applicant does not challenge the delegate’s finding that he does not pass the character test. Accordingly, the Tribunal finds that the Applicant does not pass the character test.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)
The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes “another reason” under paragraph 501CA(4)(b)(ii).
The Tribunal’s approach to its task of evaluation was the subject of a recent decision of the Federal Court of Australia: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (CRNL). The Full Court (Colvin, Stewart and Jackson JJ) allowed an appeal from a single judge upholding the Tribunal’s decision not to revoke the cancellation of a visa under subsection 501CA(4). The effect of CRNL is that the Tribunal performs its task erroneously by focussing on each consideration in isolation without properly weighing them against one another.[9]
[9] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26]-[28].
The preferred approach is one of synthesis, whereby the Tribunal determines whether any factor or combination of considerations counters the combined force of those considerations favouring non-revocation. If so, there will be “another reason” for revoking the original decision.
Protection of the Australian community (PC1)
The Applicant's offending includes the following:
The jurisdictional offence
On 5 May 2022, he was convicted of enter building/land w/i commit indictable offence-T1, assault occasioning actual bodily harm in company of others-T2, and two counts of contravene prohibition/restriction in AVO (Domestic).[10] He was sentenced to an aggregate term of imprisonment of 17 months with a non-parole period of 11 months.
[10] Apprehended Violence Order (AVO).
Domestic violence offending
He was fined on 22 April 2021 for AVO contravention and on 3 May 2021, he was convicted and fined for stalk/intimidate intend fear physical etc harm (domestic). He received custodial sentences for two ADVO contraventions forming part of the aggregate sentence imposed on 5 May 2022. These offences received indicative sentences of either four or eight months.
Fraud
On 7 July 2021, he was convicted of dishonestly obtain financial advantage etc by deception (Attempt), dishonestly obtain financial advantage etc by deception, and fail to appear in accordance with bail acknowledgement. He was fined and ordered to pay compensation. The conviction was recorded with no other penalty imposed pursuant to section 10A of the Crimes (Sentencing Procedure) Act1999.
Traffic offences
The Applicant has been convicted of the following traffic offences:
·On 27 February 2018, he was convicted of two counts of never licensed person drive vehicle on road – first offence and one count of never licensed person drive vehicle on road – prior offence. He was fined.
·On 17 July 2018, he was convicted of drive motor vehicle during disqualification period – 2^nd+ off. He received a fine and disqualification of his driver's licence for 12 months.
·On 8 October 2018, he was convicted of drive motor vehicle during disqualification period – 2^nd+ off. He received an 18-month conditional release order and 12-month licence disqualification.
·On 7 October 2020, he was convicted of drive with low range PCA – 1^st off, and two counts of drive motor vehicle while licence suspended – 2^nd+ off. He was sentenced to a 12-month community corrections order, fined, and had his driver's licence disqualified for six months.
·On 3 May 2021, he was convicted of drive motor vehicle while licence suspended (and other offences). He was fined and had his driver's licence disqualified for 12 months.
The Applicant conceded that this is a serious record of criminal offending.
Paragraph 8.1.1 of the Direction sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the Applicant's criminal offending or other conduct to date.
8.1.1 The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct, the Tribunal must have regard to the fact that some forms of offending are viewed very seriously by the Australian Government and the Australian community. This includes violent and/or sexual crimes, and crimes of a violent nature against women or children, regardless of the sentence imposed; and acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed.
I note that the Applicant was convicted of an offence committed on 15 May 2021 that involved an assault occasioning actual bodily harm. He admitted during the hearing that he kicked and hit the male victim for a few minutes. This is a serious offence committed in company and in what should have been the safety of a person’s home. Such conduct is viewed very seriously by the Australian Government and community.
As noted, acts of family violence are to be viewed very seriously, regardless of whether there is a conviction for an offence, or a sentence imposed. Family violence is defined in the Direction as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful”. The definition is followed by various examples.
The Applicant’s offending record includes one offence of stalk/intimidate, and three offences relating to the contravention of AVOs. Each of these offences related to his ex-partner (EB). I note that on 2 January 2019 there was an incident at a swimming pool when, according to police notes, EB tried to take his mobile phone away from him to see who was texting him. He is alleged to have kicked her on that occasion, but no charges were laid.[11]
[11] S30, 112.
I note that his New Zealand criminal record includes the following: male assaults female (manually) (family violence) (1/6/2010); two counts of common assault – domestic (manually), (18/2/2008; 28/10/2003); and wilful damage (family violence) (15/8/2007).[12]
[12] G8, 41-43.
The Applicant has not been convicted in Australia of any offence involving striking or hitting his partner, his children, or any member of his family.
In terms of the frequency and cumulative effect of his offending, the record shows repeat offending in relation to traffic violations. However, the assault occasioning actual bodily harm, which constituted the reason for his visa cancellation, was a different form of offending and appears to be the only act of violence in his offending record in Australia. His aggression was directed towards a male he regarded as honour bound to give evidence in support of his court proceedings.
I note that some of the COPS records indicate that police considered the Applicant to have an affiliation with an outlaw motorcycle gang. Indeed, he was stopped on 25 June 2021 for allegedly wearing a jumper with gang-related insignia or “patches”.[13] The arresting officers performed a warrant check. He was then arrested on an outstanding warrant issued by the Fairfield Local Court relating to fraud offences.[14]
[13] S30, 94; S62, 185 (execution of warrant); S7, 22 (the jurisdictional offending).
[14] S30, 94.
At the hearing, the Respondent submitted that it was open for the Tribunal to find that he was a member of an outlaw motorcycle gang. I do not think such an inference is justified on this evidence. The Applicant firmly rebutted the suggestion that he had gang affiliations. He said that the jumper in question had been given to him and was a “touch jumper” (presumably a reference to the social sport known as touch rugby).
I note that there is no evidence before the Tribunal relating to the jumper which was referred to in the police notes. The notes state that the jumper was confiscated by police.[15] No photographic evidence has been presented to the Tribunal.
[15] S30, 94.
The Applicant has a criminal record in New Zealand, a matter not declared on his arrival passenger card. The Respondent therefore contends that he has provided false or misleading information to the Department by not disclosing prior criminal offending on his incoming passenger card.[16] At the hearing, he said that he had no deliberate intent to deceive, that the card was filled out by his mother-in-law. He had never flown before and was somewhat overwhelmed by that experience. I accept that this is a credible explanation, though it does not detract from the importance of providing accurate information to immigration officials.
[16] G14, 58.
The offences disclosed in his criminal record in New Zealand cover a period from 2003 to 2017 and range from offences of general delinquency to more serious offences against the person.[17] Most of the offending occurred more than 10 years ago. The level of recidivism shows a general disregard for the law which is not explained by substance abuse or alcoholism. There is one cultivate cannabis offence committed in 2008.[18] It is not insignificant that the Applicant’s offending record in New Zealand, though lengthy, shows only one custodial sentence. This was a total of 14 days imprisonment for breach of community work in 2006.
[17] G8, 41-43.
[18] G8, 41.
He has not re-offended after being formally warned about the possible impact of his offending on his migration status.
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
When sentencing the Applicant on 5 May 2022 to 17 months imprisonment, the learned Magistrate said:
In terms of his prospects of rehabilitation, I note in particular that he has undertaken a number of courses whilst in custody over the last approximately 11 months, and I commend him for doing so. This is an opportune time for me to note that he has been in custody now, bail refused, on this matter since approximately 25 June 2021, and his rehabilitation process sounds as though it is progressing reasonably well.
He has also demonstrated remorse and contrition, and that is an important part of this process. He has recognised the error of his conduct, and I am satisfied that he accepts and understands that what he did was wrong, and that, again, is an important part of this process.[19]
[19] G11, 50.
During the hearing, the Applicant was asked whether he had undertaken any rehabilitation courses. He said that there were restrictions because of the pandemic but nevertheless he was able to do a few courses. They focussed on positive lifestyle, drugs and alcohol and family violence. He did not think that he needed further counselling or support. He referred to childhood trauma and said that he had recently started to see a psychiatrist in Villawood. He had seen the psychiatrist twice. He was not sure whether his offending was related to childhood trauma.
The Minister relies upon some documented incidents of the Applicant’s misconduct while in prison and immigration detention in support of the submission that he poses a real risk of reoffending. These include instances of being aggressive to prison staff during an AVL visit, stealing a chocolate bar and writing graffiti on a cupboard.[20] The Applicant accepted that he acted aggressively towards staff during the AVL visit. However, the seriousness of his conduct was mitigated by his uncontested evidence that immediately prior to the incident, the prisoners were locked in their cells 24 hours a day for several weeks due to COVID protocols. I do not accept the Minister’s submission that the minor infractions documented in prison and detention provide a basis to conclude that the Applicant poses a real risk of reoffending.
[20] RSFIC, [28].
I am satisfied that the Protection of the Australian Community (PC1) weighs against revocation of the mandatory cancellation. The traffic offences are serious. His failure to comply scrupulously with court orders is also serious. There is one serious offence relating to assault occasioning actual bodily harm.
Family violence (PC2)
I am also satisfied that the consideration of family violence committed by the non-citizen weighs against revocation of the mandatory cancellation. The principal offence of assault occasioning actual bodily harm was committed against EB’s de facto partner.[21]
[21] S7, 22.
However, there is nothing concrete to suggest that he was violent towards EB or their children, and there is some indication that she was a participant in the AVO breaches. His offending in this regard may be seen more accurately as an offence against the administration of justice.
The strength, nature, and duration of ties to Australia (PC3)
The Applicant has been in Australia since 19 June 2017 and in custody or detention since 25 June 2021, excepting the two months he spent in the community after Pearson. He has spent approximately one-third of his six years in Australia in prison or detention.
He said that he was gainfully employed within one week of arriving in Australia, delivering furniture. He worked in that role for about a year and then moved to a warehouse putting furniture together. On 9 April 2018, he started working as a maintenance trades assistant for the evening shift at a food processing company.[22] He was employed there until being arrested in June 2021. He provided an undated statutory declaration to the Tribunal which suggested the possibility of reemployment.
[22] ATB, 78.
The Applicant’s sister and her husband live in Western Australia.[23]
[23] ATB, 35.
He has a good relationship with EB’s sister, who lives in the household of his three older children.[24]
[24] ATB, 35.
Best interests of minor children in Australia affected by the decision (PC4)
The Applicant and EB met in New Zealand in 2005 in their twenties. They were together for 15 years. Their five children are aged between six and twelve. They came to Australia as a family in 2017. In 2021, the Applicant and EB separated. He stated that she informed him by text message on 15 March 2023 that she was returning to New Zealand on that day and had no intention of coming back.
In October 2022, the Children’s Court of New South Wales made care orders for the children.[25] Their maternal grandmother is nominated as carer of the three older children, and their maternal great aunt is the nominated carer of the two younger children.
[25] ATB, pp 6 – 77. The orders are made under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The Direction requires that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. The Applicant has five minor children in Australia. In the present case it is not possible to discern any difference in their respective interests.
The Direction states:
4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant said that before he went to prison, he saw the children every day. Even after he separated from his partner, he had regular contact. There were no parenting orders in place, but there was an informal agreement. He said that before he went into prison he was closely involved with their upbringing. He said that he prepared them for school, made their dinner, and took them to sporting events and put them to bed at night.
He said that he had provided financial support through child support payments. He said that he was working towards getting custody of the children, but that the process would be very difficult if he was in New Zealand. He stated that they went into care in 2021 when his former partner “lost them” and Family and Community Services (FACS) became involved. Care orders for each of the five children were later made by the Children’s Court.
The Applicant indicated that if he were to be removed to New Zealand, he would want the children to join him there. No doubt the existence of care orders will complicate this task. There is no evidence as to the views of their present carers on this possibility.
He was in regular contact with his children until recently. They had not been able to visit in prison, but all five children had visited him in the detention centre, with a FACS supervisor.[26] They visited for about an hour and a half. He said that they had visited three times and the next visit was dependent on the outcome of this hearing.
[26] Applicant’s Statement, [20].
He said that while he spoke to the children regularly, his contact had recently been limited. He was not certain as to why this was so and believed that the children’s carers were not opposed to contact. He believed that FACS may have wanted the children to focus on their studies. Ms Mamarot drew the Tribunal’s attention to email communications in June 2022 between his FACS caseworker and the immigration centre. These communications were for the purpose of arranging contact visits to ensure healthy family time between the Applicant and his children.[27] It appears that his case worker went to some lengths to ensure that the children could see him in immigration detention.[28]
[27] ATB, 13.
[28] ATB, 16.
The Direction provides that an important consideration is the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the children turn 18, and including any Court orders relating to parental access and care arrangements. The Applicant considered himself to be a role model for his children, apart from his offending. This was hardly comforting to the Tribunal, considering the nature of his criminal record.
The Respondent submits that this consideration should be given limited weight in favour of revocation, because the Applicant's children are living with their grandparents and there is otherwise limited evidence in relation to his children.
The Tribunal has nothing but admiration for the work undertaken by the grandparents in raising the children under such circumstances. The Applicant asserts that the children’s grandmother and maternal aunt have health problems and expresses concern as to what will happen to his children if they can no longer be cared for. There is no evidence before the Tribunal as to the durability of the caring arrangement.
While it is true that there are persons who fulfil a parental role in relation to the children, there is an abundance of evidence that the Applicant enjoys a positive and loving relationship with his children. There is no evidence that he was violent towards them or committed acts of violence towards his ex-partner in their presence.
I accept that in this case the interests of his minor children weigh in favour of revoking the mandatory cancellation.
Expectations of the Australian community (PC5)
The Respondent submits that owing to the very serious nature of the Applicant's criminal offending, and the unacceptable risk that he presents in respect of further offending, the Australian community would expect the Tribunal not to revoke the cancellation of the visa. The Respondent submits that this consideration should be given weight by the Tribunal, and that it should be found to weigh heavily against revocation.[29] The Applicant concedes that this consideration weighs in favour of non-revocation.[30]
OTHER CONSIDERATIONS:
[29] RSFIC, [45].
[30] ASFIC, [44].
Legal consequences of decision under section 501 or 501CA (OC1)
This consideration is not relevant to the present matter.
Extent of impediments if removed (OC2)
The Applicant is a Maori New Zealander with a sense of cultural affiliation and pride. Most of his family is in New Zealand, including two additional teenage children from a prior relationship. His mother, father and six siblings live in New Zealand. He said that he is close to his family. He did not think they would be able to support him, and he did not want to ask them for too much help. He agreed that his employment prospects in New Zealand were no worse than in Australia.
Based on the evidence presented at the hearing, I am satisfied that the Applicant maintains a strong emotional bond and has not detached from his children in Australia.
Anxiety caused by separation from his children and the practical problems associated with being reunited with them in New Zealand given the existence of care orders may cause considerable stress and hardship.
The Minister submits that while the Applicant may face some obstacles in returning to New Zealand, these are not insurmountable, and that the Tribunal should give this factor limited weight in favour of revocation. I agree with this submission.
Impact on victims (OC3)
There is no evidence relevant to this consideration.
Impact on Australian business interests (OC4)
This consideration is not relevant to the present matter.
CONSIDERATION
It is accepted that the Applicant fails the character test. Three of the primary considerations identified in the Direction, those relating to community protection (PC1), family violence (PC2) and community expectations (PC5), imply that a person with an offending history such as his should not hold a visa. The question for the Tribunal is whether under paragraph 501CA(4)(b)(ii) there is “another reason” for revoking the mandatory cancellation decision.
Specifically, the question is whether the combined effect of his ties to Australia (PC3), the best interests of minor children in Australia affected by the decision (PC4), and the extent of impediments he may face if returned to New Zealand (OC2) should prevail. Each of these considerations favour revoking the mandatory cancellation decision.
The other considerations identified in the Direction are not relevant (OC1, OC3, OC4).
The Tribunal is charged with responsibility for determining whether, in the circumstances that apply in this case, the correct and preferable decision is to revoke the mandatory cancellation. The Applicant’s offending history in this country is sufficiently bad to justify the non-revocation of his visa cancellation. Given his age when first coming to Australia and the strength of family connections in New Zealand, there would be no reason for the Tribunal to stay its hand. Non-revocation would be the correct decision. Indeed, this would be the Tribunal’s decision were it not for the Applicant’s five children, who have a right of indefinite residence in this country.
The Tribunal was informed that the children are wards of state and that care orders are in place. They are cared for by their maternal grandmother and her sister. The Tribunal has no reason to believe that their needs are not being met by these carers. There was no suggestion from the Applicant to this effect. To the contrary, he appeared to be respectful of their role.
However, to deny the Applicant a right to reside in this country would mean that these five children have neither parent in this country. The Tribunal has no information as to the present disposition of the children’s mother. The Applicant said that she had returned to New Zealand to “sort herself out” and when pressed said that she had substance abuse issues. The Tribunal has not received any evidence as to the mother’s attitude towards her children.
In some sad cases encountered in this jurisdiction, it is clear to the Tribunal that there is no value to be added to a child’s life by the presence of a parent. In such cases, the presence of the parent in the country may in fact jeopardise the wellbeing of the child. The natural bond has been broken or perhaps it did not exist in the first place. However, in most cases, one might reasonably hope that there is the possibility of reconnection. In the Tribunal’s opinion, this requires a positive and constructive desire from a parent who can add value to a child’s life. The loss of a meaningful relation with a mother or a father can have a profoundly damaging effect on a child’s development.
I am satisfied that in the present case there is sufficient evidence of a bond between the Applicant and his five young children in Australia and that this primary consideration should weigh very heavily upon the Tribunal’s decision. I consider that it is in the interests of these minor children that the Applicant should not be removed from Australia. His presence in the country is likely to be much needed should either of the children’s current carers be unable to perform that role.
I consider that the Australian community would want the children to be given the opportunity to maintain a close tie with their less than perfect parent. There is tangible evidence that he can earn a reasonable salary in the workforce, and that this will significantly contribute towards easing any future burden on the taxpayer.
I consider that there are good prospects of rehabilitation. The Tribunal is reasonably confident that the single instance of violent offending on 15 May 2021 is unlikely to be repeated.
The Applicant’s time spent in prison and immigration detention will provide a firm deterrence against further offending. He has found the events of the past two years a very serious wake-up call. If he wishes to remain in this country, he must participate as a constructive law-abiding member. He is aware of the consequences of further offending.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 27 June 2023 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..........[SGD]..............................................................
Associate
Dated: 19 September 2023

Date(s) of hearing: 11 and 12 September 2023

Solicitors for the Applicant: Ms M. Mamarot, Southwest Migration and Legal Services

Solicitors for the Respondent: Ms K. Pieri, Minter Ellison

[2023] AATA 2998

15 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	11 and 12 September 2023
Solicitors for the Applicant:	Ms M. Mamarot, Southwest Migration and Legal Services
Solicitors for the Respondent:	Ms K. Pieri, Minter Ellison