Tangitutu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Tangitutu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1624 (4 June 2021)
Division:GENERAL DIVISION
File Number: 2021/1716
Re:Delme Tangitutu
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:4 June 2021
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Tangitutu’s visa.
.............................[Sgnd]...........................................
Senior Member K Millar
CATCHWORDS
MIGRATION – cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) – Applicant does not meet the character test - whether there is another reason to revoke the cancellation of the visa – consideration of Ministerial Direction No. 90 – four children under 18 years of age – best interests of the child– decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
Afu v Minister for Home Affairs [2018] FCA 1311.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466.
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Millar
4 June 2021
INTRODUCTION AND BACKGROUND

Mr Tangitutu is 48 years old and is a citizen of New Zealand. He first came to Australia as a 19 year old on 2 December 1992.
On 6 August 2020, he was convicted of grievous bodily harm following an altercation with another driver at a petrol station, and was sentenced to a term of imprisonment of two years.
As a result, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled his visa under s 501(3A) of the Migration Act 1958 (“the Act”), finding he did not satisfy the character test and was serving a sentence of imprisonment. Mr Tangitutu sought revocation of the cancellation of his visa, and a delegate of the Minister found he (a) did not meet the character test; and (b) there was not another reason for the cancellation to be revoked.
Mr Tangitutu has applied for a review of the decision not to revoke the cancellation of his visa.
The hearing for this matter was held on 10 and 17 May 2021. Mr Tangitutu was unrepresented. The Tribunal heard from Mr Tangitutu, his de facto partner Ms Lynsey Reynolds, as well as Mr Matt Sergeant and Mr John Smith. The Tribunal received written evidence listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he or she is satisfied the person does not pass the character test because he or she has a substantial criminal record, and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or that there is another reason why the original decision should be revoked.[1]
[1] s 501CA(4) of the Act.
In considering whether there is another reason to revoke the cancellation of the visa, the Tribunal must comply with any directions made by the Minister under the Act.[2] The Minister has made written directions in Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”),[3] and the Tribunal must comply with this Direction in deciding whether there is another reason the cancellation of the visa should be revoked.
[2] s 499(2A) of the Act.
[3] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
A decision under s 501CA(4) of the Act involves an assessment and evaluation of facts for and against revoking the cancellation. If, following an assessment of those factors, the Tribunal is satisfied the cancellation should be revoked the Tribunal is obliged to act on that view.[4]
[4] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.
Does Mr Tangitutu Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. This phrase is defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 6 August 2020, the Applicant was sentenced to a term of imprisonment of two years, with a fixed parole release date of November 2020.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more he has a “substantial criminal record” and does not pass the character test.
Is there another reason the visa cancellation should be revoked?
In deciding if the cancellation of the Applicant’s visa should be revoked, the Tribunal must apply Direction 90.
Paragraph 5.2 of the Direction contains the framework within which decision makers are required to approach the task of deciding whether to a revoke the cancellation of a visa. These principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 measurable 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. However, 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.
(5)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 measurable risk of causing physical harm to the Australian community.
The Tribunal must take into account the primary and other considerations, informed by these principles.
Paragraphs 8 and 9 set out the primary and other considerations, which are considered in detail below.
In looking to the weight to be ascribed to the primary considerations and other considerations, Justice Colvin in Suleiman v Minister for Immigration and Border Protection[5] (“Suileman”), in applying the precursor Direction 65, stated that absent some factor that takes the case out of the “general case”, the primary considerations should be given greater weight than other considerations. However, the Direction does not require the other considerations be treated as secondary in all cases, and the Direction:
… requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[6]
[5] [2018] FCA 594.
[6] Ibid, at [23].
The Tribunal has considered the primary and other considerations in the context of Mr Tangitutu’s specific circumstances, and in considering what is to be afforded the greatest weight has considered whether his circumstances fall within or outside the general case.
OFFENDING
The offence that led to the cancellation of Mr Tangitutu’s visa occurred on 4 January 2019 and is described in the sentencing remarks of Judge Kent QC. This is summarised below.[7]
[7] G2, pp. 31-36.
Mr Tangitutu was driving in front of the complainant. Each driver’s behaviour annoyed the other and led to “road rage”. Mr Tangitutu pulled into a 7-eleven and petrol station. The complainant followed, also pulling into the 7-eleven and parking at a petrol bowser. On both men getting out of their cars, the complainant made the first comment, and insults were exchanged. Mr Tangitutu then walked over and punched the complainant in the head. The complainant fell and hit the back of his head on the petrol bowser. Mr Tangitutu punched him four more times. When the complainant fell to the ground, Mr Tangitutu held him to the ground. Another citizen attempted unsuccessfully to pull Mr Tangitutu off the complainant, but he did not release the complainant until his de facto partner approached and they left together. The complainant was left with a broken nose and a significantly dislocated shoulder that required surgery and was not fully repaired, leaving him with an impaired ability to work and impairments to activities of daily living.
Judge Kent noted Mr Tangitutu’s criminal history in New Zealand and New South Wales, stating that much of that history was not of great relevance. However, his convictions in 1991 in New Zealand for assault, and in 2000 in Australia for wounding were notable.[8] Judge Kent sentenced Mr Tangitutu to a term of imprisonment of two years.
[8] Judge Kent refers to this offence occurring in 1989, however the police check records sentencing for this offence on 22 May 2000 (G28). Police records note this offence as occurring on 14 June 1998 (SM69).
In other offending in Australia, Mr Tangitutu was sentenced to a bond for 12 months for destroy/damage property less than $2,000 on 3 October 2017. This resulted from an altercation with a bus driver as a result of one or both drivers cutting the other off while changing lanes. Mr Tangitutu exited his car while stopped at lights and went to the driver side of the bus. He hit the driver’s window which broke.
The other significant offence for which Mr Tangitutu was convicted in Australia in 2000 is malicious wounding. The sentencing remarks are not before the Tribunal. The police incident report records this resulted from a dispute at a pub about Mr Tangitutu bumping into the victim who dropped a drink. An argument resulted and it is recorded that Mr Tangitutu reached over another person and smacked a glass into the victim’s face causing large gash in the victim’s cheek requiring 23 stiches. As the sentencing remarks are not before the Tribunal, there is no further information to show whether this account was accepted by the Court. Mr Tangitutu was sentenced to periodic detention for 18 months.
Other than these offences Mr Tangitutu has been convicted on two occasions (2003 and 1994) of exceeding the prescribed concentration of alcohol and was convicted of other traffic offences in 2000 and 1994. He was sentenced to fines and his licence disqualified.
The New Zealand police record was also before the Tribunal.[9] A number of these offences occurred when Mr Tangitutu was a minor and include theft, wilful damage, burglary, shoplifting and possession of cannabis. There is one conviction for aggravated assault for which Mr Tangitutu was sentenced to corrective training for three months.
[9] G2, pp. 29-30.
PRIMARY CONSIDERATIONS
Paragraph 8 of the Direction sets out four primary considerations that the Tribunal must take into account. These are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Each of these considerations has a number of elements, and the Tribunal has considered each of the primary considerations in turn.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to primary consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. The Tribunal has considered each of these factors.
The Direction provides that, without limiting the range of conduct that may be considered very serious, certain type of crimes or acts of violence are viewed very seriously. These are violent and/or sexual crimes, 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.[10]
[10] cl.8.1.1(1)(a).
Mr Tangitutu has been convicted of malicious wounding and grievous bodily harm. These are crimes of violence and are viewed very seriously.
The Minister sought to rely on police records to assert that Mr Tangitutu’s conduct includes acts of family violence.
The first of these incidents is recorded in a police note of 13 February 2000,[11] in which it is reported the parties were arguing and Mr Tangitutu slapped the victim. He then left the unit to cool off and police attended while he was not there and spoke to the victim. It is reported there were no visible injuries on the victim, and she did not seem to be suffering any injuries that were not visible. The victim stated she did not want any action taken.
[11] SM3, p. 74.
Mr Tangitutu did not recall the incident or police asking his partner if she wanted to take out an AVO. He said police found that he done nothing wrong, and that if he had done anything he would have been charged. Ms Reynolds did recall this incident and said that she is the victim referred to in the report. She said she did not call the police and said while they did have an argument, Mr Tangitutu was not violent. The Tribunal accepts Ms Reynolds direct account of what occurred.
A second incident is recorded in the police notes in which police were called on 15 December 2009.[12] This was an incident with Mr Tangitutu’s daughter from a previous relationship who was staying with Mr Tangitutu and Ms Reynolds. There was a dispute about a mobile phone that was given to his daughter, and which was taken from her following an argument. His daughter’s mother called the police who attended. The police report describes the comments about what occurred as being exaggerated, and that the informant did not want her daughter vising Mr Tangitutu. His daughter did not disclose any offence to police when they arrived, and no injuries were evident. The Tribunal does not consider this establishes conduct involving family violence.
[12] SM3, pp. 66 – 67.
The Minister also relied on a record of an apprehended violence order in 1993, and a record of an episode “actual family violence”.[13] Mr Tangitutu said no order was made, there is no record of an order on the police record, and this was not pursued further by the Minister.
[13] SM3, p. 72.
The Tribunal is not satisfied these police records disclose conduct on which it could rely as evidence of conduct involving family violence. There are some descriptions that could potentially be family violence, however they are equivocal. The direct evidence from Ms Reynolds is that Mr Tangitutu was not violent. There is insufficient other evidence to support a finding that Mr Tangitutu’s conduct includes acts of family violence, or that it is conduct that should be considered very serious under cl.8.1(1)(a) of the Direction.
The Direction further specifies certain types of crimes or conduct considered by the Australian Government and the Australian community to be serious, without limiting the conduct that can be regarded as serious.[14] Of these, there is no suggestion Mr Tangitutu was involved in any type of forced marriage, that his offences were against vulnerable members of the community or that he committed crimes since being taken into immigration detention. The Tribunal is not satisfied there is other conduct that would form the basis for finding Mr Tangitutu does not pass an aspect of the character test that is dependent on the decision-maker’s opinion.
[14] cl.8.1.1(1)(b)
The Direction requires a decision maker to take into account the sentence imposed by the courts for a crime or crimes, with custodial sentences being the last resort viewed as a reflection of the objective seriousness of the offending.[15] This does not apply to violent offences such as those for which Mr Tangitutu has been convicted, as these offences are regarded very seriously regardless of the sentence which for completeness were 2 years’ imprisonment and 18 months of periodic detention. Mr Tangitutu’s other convictions in Australia are driving offences, including driving over the prescribed concentration of alcohol and one offence of destroying or damaging property. None of these offences resulted in a custodial sentence. Mr Tangitutu’s offending in New Zealand resulted in sentences of non-residential periodic detention, corrective training and fines/reparation.
[15] cl.8.1.1(1)(c)
The next consideration looks to the frequency of Mr Tangitutu’s offending and whether there is any trend of increasing seriousness.[16] Mr Tangitutu points to the long period of time between his offending, with 14 years between a driving offence and the damage to property. The period between the offences of malicious wounding and grievous bodily harm is 19 years. The Minister states Mr Tangitutu was charged with malicious wounding and then grievous bodily harm, which it was submitted shows an increasing trend of seriousness. These are two offences with approximately 20 years apart and do not show a pattern or trend of offending. Due to the long period between offences and a low frequency of offending, the Tribunal is not satisfied there is a trend of increasing seriousness or frequency of offending.
[16] cl.8.1.1(d).

Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. Since his arrival in Australia, Mr Tangitutu has been convicted of a total of six driving offences that occurred over two separate occasions. The offending in New Zealand generally occurred when he was a minor and is now a considerable period in the past. Of greater concern are the two offences that involve injury to others and the damage to property in the altercation with the bus driver. However, given the overall low number of offences, the cumulative nature of his offending does not attract significant weight.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Mr Tangitutu failed to disclose his criminal convictions on his arrival cards on 28 February 2007, 13 April 2008, 3 November 2008, 25 July 2009, 2 October 2009, 31 October 2010, 11 August 2012 and 25 October 2018.[17] Mr Tangitutu accepted he had provided false or misleading information on his passenger cards.
[17] G2, pp. 40 – 47.
Mr Tangitutu sought to explain his failure to disclose the offending on his criminal history as his understanding of spent convictions legislation. He said he had heard that if he had not been convicted for a period of five to seven years, he did not have to disclose the offences. He provided various information on spent convictions legislation in NSW and Queensland.
The Minister submitted his failure to disclose his previous criminal convictions shows a disregard for the laws in Australia. It was put to Mr Tangitutu that at the time he signed the incoming passenger cards he was not aware of spent convictions legislation, that he had researched this after the event, and that the Queensland legislation refers to a period of 10 years after the offending, which had not been the case when he signed the cards.
Mr Tangitutu’s failure to disclose his criminal convictions on his incoming passenger cards, whatever he may have thought at the time, does mean he has provided false and misleading information to the Department about his previous criminal offending.
Mr Tangitutu has not previously been warned about the consequences of further offending, and cl. 8.1.1(1)(g) does not apply.
The relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction that apply to Mr Tangitutu, in their totality, weigh moderately against revoking the cancellation of his visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the revocation of a cancellation of a visa, 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;
(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 re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
The Tribunal has considered each of these factors in turn.
The nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community if Mr Tangitutu engages in further criminal or other serious conduct is informed by the nature of his offending to date, including any escalation in his offending. The Direction requires the Tribunal have regard to the Government’s policy that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm it would cause is so serious that the risk it would be repeated may be unacceptable.[18]
[18] cl.8.1.2(1).
The nature of the harm if Mr Tangitutu repeats his violent offending is severe. The sentencing remarks records that the victim of the most recent offence of grievous bodily harm suffered a broken nose, a significantly and badly dislocated right shoulder and bruises and other soft tissue injuries. His shoulder required surgery and the victim reports he continued to suffer a loss of function in this shoulder which impaired his work ability and activities of daily living.[19] The impact on the victim was described by Judge Kent QC as “… substantial and ongoing, including physical health, mental health and employment consequences.”[20]
[19] G2, p. 32.
[20] G2, p. 33.
Mr Tangitutu has been convicted of malicious wounding. This offence occurred 20 years before the offence that led to the cancellation of his visa. The Tribunal does not consider this shows an escalation in his offending as a pattern or trend. However, it does show the severity of the harm should he reoffend as on that occasion there was also injury to a person, resulting in 23 stiches.
Mr Tangitutu has otherwise been convicted of driving offences, including exceeding the prescribed concentration of alcohol which can lead to significant harm to the community.
Likelihood of engaging in further criminal or other serious conduct
A psychology report was prepared for the purpose of sentencing Mr Tangitutu for grievous bodily harm.
This report records that there are positive prognostic factors for Mr Tangitutu including his commitment to his family, his strong work ethic, his willingness to have treatment and high levels of regret and remorse about his behaviour and his determination not to reoffend. It recommends he continue with treatment and have access to treatment for a period of 12 months, to assist with managing stress and overload and to continue progress made in attending the anger management course. The psychologist concludes that with appropriate ongoing access to counselling the likelihood of Mr Tangitutu reoffending will be significantly reduced.
Judge Kent states Mr Tangitutu did the initial anger management course in February 2019 and continued to have treatment through the psychologist Mr Matsukis. At the time of sentencing he had attended 6 sessions.[21] Judge Kent accepted Mr Tangitutu had expressed genuine remorse[22] and that he had done his best with anger management courses.[23] Mr Tangitutu provided a certificate of completion for an anger management and conflict resolution program dated 18 February 2019.[24]
[21] G2, p. 34.
[22] G2, p. 35.
[23] G2, p. 35.
[24] G2, p. 97.
Mr Tangitutu provided a report from Mr Matsukis[25] stating he had attended 6 sessions to 22 July 2020, using CBT tools to assist him with anger management. Mr Matsukis states Mr Tangitutu reported good insights and that he had changed his behaviour in significant ways, including in how he drives, which has resulted in lower levels of anger and stress.
[25] G2, p. 95.
Another factor that, to the mind of the Tribunal, weighs reasonably heavily in assessing the likelihood of Mr Tangitutu engaging in further criminal or other serous conduct is that he a demonstrated capacity to make significant and long-lasting changes to his life. Following the malicious wounding offence he engaged in Alcoholics Anonymous and has remained an active participant and volunteer for Alcoholics Anonymous. He has remained sober for 18 years and has abstained from gambling for 14 years.
Mr Tangitutu provided a statement from Mr John Smith,[26] who also gave oral evidence. Mr Smith confirms Mr Tangitutu was secretary of Burleigh Heads Alcoholics Anonymous for over 7 years. Mr Smith confirmed Mr Tangitutu has abstained from alcohol, cigarettes and gambling. He attends meetings regularly and assists others.
[26] G2, p. 94.
Mr Tangitutu also provided a statement from Mr Matt Sargeant[27] who also gave oral evidence. Mr Sargeant has known Mr Tangitutu for 10 years gave evidence that Mr Tangitutu has been secretary of Alcoholics Anonymous for the last five years. Mr Sargeant said the secretary position is voluntary and difficult to fill. It involves a commitment of 3-4 hours a week, and Mr Sargeant said Mr Tangitutu also attends other meetings during the week. Mr Sargeant said Mr Tangitutu has been sober for 18 years.
[27] Exhibit A4
Mr Tangitutu’s sobriety over a long period and his engagement with Alcoholics Anonymous shows he can make and sustain significant changes to his life, and the Tribunal considers this lowers his risk of reoffending.
The Minister points to two incidents that occurred since Mr Tangitutu has been in immigration detention. The first was a verbal dispute with another detainee about being able to play his guitar[28] and the second involved a missing ice-cream.[29]
[28] RE2, p. 150.
[29] RE2, p. 152.
In the first incident the detention centre reports that Mr Tangitutu was playing his guitar, and another detainee took exception due to the noise. Mr Tangitutu is said to have taken offence and responded that it was an appropriate time of day to play his guitar. Mr Tangitutu and the other detainee continued to argue and grabbed each other by the shirt, pushing each other until the incident was de-escalated by staff. Mr Tangitutu did not agree with the proposition put to him that he had to be forcibly separated from another detainee, nor is this what the report records. Mr Tangitutu said that there are people who stab or shoot others in immigration detention, and at some point you have to stick up for yourself. He said he merely stood his ground, and there was no assault. The Tribunal does not consider this incident establishes Mr Tangitutu would be likely to engage if further criminal or other serious conduct in the community.
The second incident occurred after Mr Tangitutu was reportedly abusive towards a detainee service officer in responding to his request about a missing ice-cream. He is reported to have left the situation and entered the gym area and damaged a step-up stand beyond repair. He apologised for his actions and acknowledged he should have handled the situation better.
Mr Tangitutu did not agree with the sequence of events leading to a step being damaged but did not dispute a step had been damaged. He disagreed that he was shouting. He said he did not manage his disappointment appropriately and has always been very polite. The week before this incident Mr Tangitutu said he had received the decision not to revoke the cancellation of his visa, and had also been in hospital with a kidney stone. He also stated it was the same month as his daughter’s birthday. He says he knew something was building and had asked to see mental health in the detention centre. Mr Tangitutu’s attention was drawn to the record that states he failed to attend this appointment. He says he was not called to attend the appointment and was not asked to make another appointment. The Tribunal does not consider this event shows Mr Tangitutu is more likely to engage in further criminal or other serious conduct in the community.
While Mr Tangitutu had made progress in addressing the issues identified in the psychology report, it remains of concern that Mr Tangitutu sees his offending in light of addictions.[30] His ability to manage his underlying anger and stress, as a separate concern to his addictions, is developing but the extent of his control under pressure has not been established. While Mr Tangitutu’s confidence in addressing addiction is well placed given his success with managing alcohol and other drugs in the past, Mr Tangitutu did not come across as having fully engaged with the difficulty he has managing anger, rather than his substance use.
[30] G2, p. 77.
Mr Tangitutu cites potential separation from his partner and four children as a protective factor. The Tribunal accepts he is highly motivated not to reoffend and is genuinely highly distressed by the prospect of being separated from his family. The Tribunal is persuaded that, given his by his ability to make changes to his life in the past, he has good prospects of being able to make the changes necessary to reduce his risk of reoffending. He has had long periods with no offending in the community, with 20 years between the serious offences. In participating in the anger management course and some personal counselling, he has taken initial steps in managing the problems he has managing stress and anger, but still has work to do in learning how to manage his emotions.
In the circumstances of this particular case, the Tribunal finds his risk of reoffending is low to medium.
Conclusion: Primary Consideration 1
The risk to the Australian community should Mr Tangitutu commit further offences is serious. The likelihood of him engaging in this behaviour is low to medium. Having considered these factors cumulatively, this consideration weighs moderately in favour of not revoking the cancellation of his visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
Mr Tangitutu has not been convicted or charged with an offence that involves family violence. The Tribunal is not satisfied that there is any other evidence that is sufficient to show his conduct includes acts of family violence.
It follows that this consideration does not apply and is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction requires a decision-maker to decide non-revocation is in the best interests of a child affected by the decision. Children considered under this consideration must be under 18 at the time of this decision (cl.8.3(2)), and the best interests of each child should be given individual consideration to the extent that their interests differ (cl.8.3(3)).
Mr Tangitutu has four minor children and one adult child. He lists a number of other minor children who would be affected by the decision not to revoke the cancellation of his visa in his application to revoke the cancellation of his visa, however many of these are adults.[31] The Tribunal identified 8 minor nieces and nephews identified in his application to revoke the cancellation of his visa.
[31] G2, p. 74.
Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides 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 Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. These are:
·     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);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Tangitutu identifies interests for Child A, and there are some factors that apply to all his children. He did not provide different interests for his minor nieces and nephew, and to the extent that their interests do not differ, his nieces and nephew have been addressed as one group.
Factors common to Mr Tangitutu’s minor children
In looking at the factors that must be considered in cl.8.3(4)(a) to (h), some factors are common to all of Mr Tangitutu’s minor children. Mr Tangitutu plays a parental role for his minor children, and prior to being in prison and immigration detention he has lived with the children and his partner and has been involved in their care from birth. Mr Tangitutu included photographs of him with the children on various occasions.
Mr Tangitutu said he and Ms Reynolds decided to relocate from New South Wales to Queensland to provide a better lifestyle for the children, as the living expenses were lower. This involved moving away from his extended family.
Other than Mr Tangitutu, his partner Ms Reynolds plays a parental role for the children. Both Mr Tangitutu and Ms Reynolds’ extended family live in New South Wales and are not available locally to play a parental role. There are no other periods of absence or limited meaningful contact as contemplated by cl.8.3(4)(a).
Ms Reynolds gave evidence that the children had been at the same school for their whole lives. She said she would be unable to afford to travel with the children to see Mr Tangitutu in New Zealand as there are four children. She previously worked part time for her own company, a furniture removal business, but is now receiving Centrelink payments. This was initially due to a reduction in business due to COVID-19, however she was then unable to work due to her caring responsibilities. The absence of Mr Tangitutu has a detrimental effect on the financial support of the children.
Mr Tangitutu and Ms Reynolds state he plays a positive parental role for his children and is actively involved in their schooling, including through discussions with the teachers, in their sport, and in taking the children to activities such as piano and dance lessons.

This positive parental role is detracted to some extent by his evidence during the hearing that, during the dispute with the bus driver, he left the children in the car which was stationary in front of the bus. His children were also in the car during the assault leading to the conviction for grievous bodily harm. Mr Tangitutu claimed this would not have had an adverse effect on them as on both occasions they were in car seats facing the other way. The Tribunal does not accept that his agitation at this time would not have had an adverse effect on the children, however acknowledges there is no evidence that the children suffered any trauma arising from his conduct. It further finds there is a low likelihood of future conduct that will have a negative impact on the children. There is no evidence that any of the children are at risk of, or has been exposed to, family violence.
Mr Tangitutu said the effect of being separated is in the quality of time such as putting the children to bed and reading stories, and not being present to listen to what happened at school. The level of intimacy on the phone is not as great as their conversations are more limited. Mr Tangitutu sees a large difference between contact by electronic means and being a daily presence in their lives.
Ms Reynolds said that if Mr Tangitutu is removed from Australia this will limit contact, including electronic contact, he has with the children due to the cost of this contact and due to the time difference between New Zealand and Australia, as if he is working there will be limited opportunities to talk to the children during the day.
Child A
Child A is Mr Tangitutu’s eldest child who is 15 years of age. Mr Tangitutu said she has had trouble sleeping since he has been in prison and in immigration detention, and since being in immigration detention he has been on the phone to her a lot.
Mr Tangitutu said he drops her off and picks her up from school and is in constant contact with her school and teachers.
Ms Reynolds provided a statement in which she says Mr Tangitutu helps guide Child A through school with tools and advice when other children are giving her a hard time at school. Ms Reynolds gave evidence that Child A has a speech and language delay and is classed as being at two tears below her grade. She said this currently has an effect on her school work and Mr Tangitutu helps her with her school work.
Mr Tangitutu provided text messages and a letter from Child A to support his frequent contact with her.[32]
[32] Exhibit A3, p. 4, G2, p. 106
The Tribunal finds that Mr Tangitutu’s absence would have a very significant effect on Child A, and that her best interests are that the cancellation of visa is revoked.
Children B, C and D
Child B is 11 years of age. Mr Tangitutu said they have similar personalities and clash a bit and Child B gets on better with her mother. He provided text messages from Child B telling him about her schooling and her day, as well as a letter she had written him.[33]
[33] Exhibit A3, p. 2, G2, p. 107
Child C is 10 years of age, and Mr Tangitutu said he is very close to Child C. He provided several letters written to him by Child C while he has been incarcerated and copies of text messages.[34]
[34] Exhibit A3, p. 1, G2, p. 108.
Child D is seven years old and is into rugby. Mr Tangitutu has been helping him with his rugby skills as his mother has no knowledge of rugby. Mr Tangitutu said his son needs a male role model. Mr Tangitutu provided text messages and a drawing from Child D.[35]
[35] Exhibit A3, p. 3, G2, p. 105
The best interests of Mr Tangitutu’s children
Mr Tangitutu has a close parental relationship with his four children and was actively involved in their day to day care and activities before being imprisoned and in immigration detention. The youngest is seven years old, and there is a lengthy period in which he can play a positive parental role. The best interests of these children are that he remain in Australia, and weigh heavily in favour of revoking the cancellation of his visa.
The best interests of Mr Tangitutu’s minor nieces and nephews
Mr Tangitutu’s niece has a daughter who is five years old. His brother Kenneth has two children who are 9 and 10 years of age, his brother Daniel has four children ranging from 8 to 17 years and his brother Geoff has a daughter who is 5 or 6 years old. Mr Tangitutu could name all the children and give their approximate ages. None of them live in Queensland, however Mr Tangitutu organises family gatherings so they can visit each other.
Mr Tangitutu does not play a parental role for these children, however he facilitates the extended family gathering and contact between his children and his minor nieces and nephews. The Tribunal finds the best interest of these children, while weighing in favour of revoking the cancellation of the visa, do not weigh significantly so.
Conclusion: Primary Consideration 3
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to primary consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of a particular kind. In looking at the conduct of particular concern to the Australian community specified in cl.8.4(2)(a) to (f), the offences committed by Mr Tangitutu do not involve acts of family violence, do not relate to forced marriage, were not against vulnerable members of the community or against government representatives or officials, did not involve human trafficking or people smuggling and did not involve worker exploitation.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[36] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[37]
[36] [2019] FCAFC 185.
[37] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Mr Tangitutu’s commission of offences, and breach of the law in Australia means that the expectation of the Australian community is that the cancellation of his visa should not be revoked.
In assessing the weight attributable to primary consideration 4, the Tribunal has returned to the principles in the Direction. This includes that the privilege of being able to remain in Australia is conferred in the expectation that non-citizens will respect important institutions and not cause or threaten harm to individuals. Mr Tangitutu has provided false and misleading information on his passenger cards and has broken the law in Australia, resulting in injury to members of the community on two occasions, as such he should expect to forfeit the privilege of staying in Australia.
However, Australia may afford a higher degree of tolerance to those who have been participating in and contributing to the Australian community for most of their life. Mr Tangitutu has contributed to the community through his work, his extensive involvement and volunteering for Alcoholics Anonymous and in pursuing his interest in and teaching the Maori language. He has been in Australia for nearly 30 years. The specific conduct, such as family violence and the types of conduct specified in this consideration do not apply.
In these circumstances, the Tribunal places moderate weight on this consideration in favour of not revoking the cancellation of Mr Tangitutu’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the other considerations listed at paragraph 9 of the Direction. These considerations are:
(1)international non-refoulement obligations;
(2)extent of impediments if removed;
(3)impact on victims; and
(4)links to the Australian community, including:
(i) strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests
International non-refoulement obligations
Mr Tangitutu does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This consideration is neutral.
Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Mr Tangitutu said he is in good health and did not express any concerns about his health were he to return to New Zealand. He said he would suffer mentally, but did not think this was the biggest issue, as his bigger concern was the effect on his children and partner.
Mr Tangitutu has returned to New Zealand for brief visits on several occasions since his arrival in Australia. Mr Tangitutu said he would not face substantial cultural or language barriers if returned to New Zealand. He identifies as part of the Ngai Te Rangi tribe, which is approximately 150,000 people. He said that where is family lives there is a smaller tribe, but he does not consider himself a “member” of that tribe. He speaks Maori, which is the language of the Ngai Te Rangi tribe, and he is passionate about keeping this language alive. He said if he returns to New Zealand he has a truck licence and would find a job driving a truck.
Mr Tangitutu can find work and support himself. He will have access to similar levels of community and health than he could obtain in Australia. He will suffer mental distress at being separated from his family.
This consideration weighs somewhat in favour of revoking the cancellation of his visa.
Impact on victims
Other consideration (c) requires decision-makers to consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal about the impact Mr Tangitutu’s continued presence in Australia would have on any victims. This consideration is therefore neutral.
Links to the Australian Community
In consideration of other consideration (d), paragraph 9.4 of the Direction requires decision makers to have regard to:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Direction specifies that the Tribunal must consider the impact of the decision on the non-citizen’s immediate family members in Australia where those family members are Australian citizens or permanent residents, or who have a right to remain in Australia indefinitely (cl.9.4.1).
The most significant effect on an Australian citizen is on Ms Reynolds. She has been in a relationship with Mr Tangitutu for 22 years and they have four children together. Ms Reynolds provided compelling oral evidence that she would be devastated if Mr Tangitutu is deported. Ms Reynolds has some health concerns, and provided a medical certificate stating she requires a hernia repair.[38] Ms Reynolds says she cannot have the surgery performed at this time as there is no-one who can look after the children. While her health concerns were a little overstated by Mr Tangitutu, the Tribunal accepts Ms Reynolds requires surgery and needs the support and care of Mr Tangitutu during her recovery, as well as his care of the children.
[38] A4.
Mr Tangitutu provided statements from Ms Vicki Mitchell and Mr Chris Mitchell,[39] Ms Alison Tangitutu,[40] Mr John Smith[41] and Mr Matt Sergeant.[42] Ms Vicki Mitchell is Ms Reynolds’ aunt. Ms Mitchell writes of the support provided to her and her sons by Mr Tangitutu during the illness and death of Ms Reynolds’ father. She states she worries about Ms Reynolds’ mental health and the impact on the children if Mr Tangitutu is deported. She describes Mr Tangitutu as the rock of the family and the extended family. Mr Chris Mitchell also writes of the support Mr Tangitutu provided to the Reynolds’ family during the illness and death of Ms Reynolds’ father. He states he values Mr Tangitutu as a human being and family man and someone he holds in high regard.
[39] G2, p. 92.
[40] G2, p. 93.
[41] G2, p. 94.
[42] A1.
The impact on Ms Reynolds if Mr Tangitutu’s visa remains cancelled is very significant. She will lose his support in caring for the children, it will detrimental to her financially and it will be difficult to obtain the medical treatment she requires.
Mr Tangitutu has his father, one sister and five brothers living in Australia. He also has adult nieces and nephews, cousins and uncles. To the extent that this information is before the Tribunal, it appears they are citizens of New Zealand. While it is not before the Tribunal, it is inferred they have a right to remain in Australia indefinitely.
His sister Ms Allison Tangitutu provided a statement[43] in which she writes that she has a close relationship with Mr Tangitutu.
[43] G2, p. 93.
Mr Tangitutu said he is the link between family members and organises the family gatherings. The family comes together on the anniversary of his mother’s death on 12 January.
Mr Tangitutu said his eldest brother Patrick and Patrick’s partner lived with him and Ms Reynolds for two years until Patrick obtained a job in the mines and became self-sufficient. He is close to Patrick’s sons Patrick Junior and Darius. Similarly, his sister Allison and her elder daughter Kalidah lived with Mr Tangitutu and Ms Reynolds when she arrived in Australia.
The Tribunal finds there will be a significant impact on these family members if Mr Tangitutu’s visa remains cancelled, and in particular they will lose the connection Mr Tangitutu facilitates by arranging family gatherings.
The Tribunal must also consider the strength, nature and duration of any other ties the non-citizen has to the Australian community, and in doing so have regard to how long the person has resided in Australia and whether they arrived as a young child. In considering the length of residence, less weight is to be given where the person began offending soon after arriving in Australia and more weight should be given to the time the person has spent positively contributing to Australian society.[44]
[44] cl. 9.4.1(2).
Mr Tangitutu arrived in Australia in 1992 and has been in Australia for 28 years. he was first convicted of driving offences, including exceeding the prescribed concentration of alcohol in 1994. His lower level offending began relatively shortly after arriving in Australia. The very serious offences of malicious wounding and grievous bodily harm occurred approximately 8 and 27 years after arrival respectively.
Mr Tangitutu has made a very significant contribution to Australia through his involvement in Alcoholics Anonymous.
His commitment to Alcoholics Anonymous was supported by written statements and oral evidence from Mr Smith[45], Mr Sargeant[46] and Ms Helen Reeds[47], who is the office administrator at Burleigh Heads Anglican Church. Ms Reeds states Mr Tangitutu has been the “go to” person for Alcoholics Anonymous in Burleigh Heads for at least the last 5 years.
[45] G2, p. 94.
[46] Exhibit A1.
[47] G2, p. 96.
Mr Tangitutu has also made a contribution to the community by furthering knowledge of the Maori language and teaching this language. Ms Reeds states he rented the Church hall for 8 to 10 months to conduct Maori language classes.
Mr Tangitutu has significant and longstanding ties to members of the school community and those in Alcoholics Anonymous. Two members of Alcoholics Anonymous gave evidence that they have known Mr Tangitutu for over 10 years, and they have supported each other in remaining sober.
The Tribunal considers Mr Tangitutu has substantial and significant constitution to the Australian community and has strong, close and longstanding ties to Australian citizens in the communities with which he is involved.
This consideration weighs heavily in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Mr Tangitutu does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the other considerations can be summarised as follows:
(a)international non-refoulement obligations is neutral;
(b)extent of impediments if removed weighs somewhat in favour of revoking the cancellation of the visa;
(c)impact on victims is neutral; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia weigh heavily in favour of revoking the cancellation of the visa; and the impact on Australian business interests is neutral.
CONCLUSION
The Tribunal is required to weigh all the considerations in accordance with the Direction.
Two of the primary considerations; the protection of the Australian community and the expectations of the Australian community, weigh moderately in favour of not revoking the cancellation of Mr Tangitutu’s visa. The best interests of minor children weigh heavily in favour of revoking the cancellation. The remaining primary consideration is neural.
Of the other considerations, the extent of impediments if removed weighs slightly in favour of revoking the cancellation of the visa and the links to the Australian community weigh heavily in favour of revoking the cancellation.
According to paragraph 7 of the Direction, primary considerations should generally be given greater weight than the other considerations, however one or more primary considerations may outweigh other primary considerations.
In this case, the best interests of Mr Tangitutu’s children outweigh another of the primary considerations. As one primary consideration weighs for and one against not revoking the cancellation of the visa, It then falls to the Tribunal to consider whether there are circumstances that take this case out of the circumstances that generally apply as contemplated in Suileman such that one or more of other considerations should be treated as a primary consideration.

The Tribunal considers the particular combination of Mr Tangitutu’s minor children, his longstanding relationship with Ms Reynolds and her medical needs, his proven ability to make lasting changes to his life by remaining alcohol free for 18 years, his contribution to the community through Alcoholics Anonymous and teaching the Maori language, and his family ties in Australia, take this case out of the ordinary and result in the Tribunal placing greater weight on the strength, nature and duration of ties to Australia.
As a result, the Tribunal considers under s 501CA(4)(b) there is another reason the cancellation of Mr Tangitutu’s visa should be revoked. Mr Tangitutu should remain aware that any further criminal activity, and in particular any offences resulting from a failure to manage his anger would result in the cancellation of his visa again being considered.
The Tribunal considers there is another reason to revoke the cancellation of Mr Tangitutu’s visa under s 501CA(3A)(4)(b)(ii). The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Tangitutu’s visa.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Tangitutu’s visa.

I certify that the preceding 144 (one hundred and forty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kate Millar.

...........................[Sgnd].............................................
Associate
Dated: 4 June 2021

Date of hearing: 10 & 17 May 2021

Representative for the Applicant:

Self-represented

Representative for the Respondent: Hannah Anderson, CLAYTON UTZ

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.	Lodged By	Document
G1-227	Respondent	G-Documents
SM	Respondent	Bundle of summonsed materials
A1	Applicant	Statement of Matt Sargeant (dated 20.04.2021)
A2	Applicant	Medical report – Ms Reynolds (dated 19.04.2021)
A3	Applicant	Applicant’s bundle of documents - photographs, phone records, information on spent convictions and fine payment plan (various dates)
A4	Applicant	Centrelink PAYG payment summary (dated 07.04.2021)

ANNEXURE B – APPLICANT’S OFFENDING HISTORY (AUSTRALIA)

Court	Court Date	Offence	Offence Date(s)	Court Result
Sutherland Local Court	3 October 2017	Destroy or damage property	13 August 2016	Bond S9: 12 Months
Kogarah Local Court	1 April 2003	Drive on road etc when licence cancelled	5 November 2002	Disqualification: 2 Years Commencing 01/04/2003
Kogarah Local Court	1 April 2003	Drive with middle range PCA	5 November 2002	Fine: $900 Disqualification: 12 Months Commencing 05/11/2003
Sutherland Local Court	22 May 2000	Malicious wounding (First instance warrant)	14 June 1998	Periodic Detention:18 Months Commencing 02/06/2000 Non-Parole Period: 12 Months
Sutherland Local Court	18 April 2000	Use unregistered vehicle on road area	10 December 1999	Fine: $150
		Use uninsured motor vehicle	10 December 1999	Fine: $150
		Not give way to vehicle (right turn at terminating road)	10 December 1999	Fine: $150
		Drive on road when license cancelled	10 December 1999	Fine: $800 Disqualification: 2 Years Commencing 18/04/2000
Waverely Local Court	25 July 1994	1.MID PCA	1 July 1994	Fine: $400 Disqualification: 6 Months
		2. UNLIC	1 July 1994	Fine: $100
		3. UNREG	1 July 1994	Fine: $100
		4. UNINS	1 July 1994	Fine: $100

ANNEXURE B – APPLICANT’S OFFENDING HISTORY (NEW ZEALAND)

Court	Court Date	Offence	Offence Date(s)	Court Result
Tauranga District Court	12 May 1992	Possess Class B	6 May 1992	Convicted and Sentenced: Non-Residential Period Detention
Auckland District Court	26 April 1991	Theft Ex Car (Under $500)	22 March 1991	Convicted and Sentenced: Corrective Training – 26/04/1991 – 3 Months, Standard Release Conditions
Auckland District Court		Aggravated Assault (Manually)	22 March 1991	Convicted and Sentenced: Corrective Training – 26/04/1991 – 3 Months, Standard Release Conditions
Auckland District Court		3 x Unlawful interfere motor vehicle etc.	11 March 1991	For each charge: Convicted and Sentenced: Corrective Training - 26/04/1991 – 3 Months, Standard Release Conditions
Auckland District Court	18 March 1991	Shoplifts (under $500)	16 March 1991	Convicted and Sentenced: Non-Residential Periodic Detention – 18/03/1991 – 14 Days, 4 Months
Otahuhu District Court	15 November 1990	Cultivate Cannabis	1 July 1990	Convicted and Sentenced: Fine - $1,200.00 / Additional Information - $30 PW F/P 301190
Auckland District Court	17 September 1990	Breach of periodic detention	1 September 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 17/09/1990 – 9 Months
Auckland District Court	17 September 1990	Breach of periodic detention	25 August 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 17/09/1990 – 9 Months
Tauranga District Court	16 August 1990	Possess Instruments for Burglary	4 July 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 16/08/1990 – 9 Months
Tauranga District Court		Possession Cannabis Plant	4 July 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 16/08/1990 – 9 Months
Tauranga District Court		Burgles (Oth Prop) ($500-$5000)By Ngt	3 July 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 16/08/1990 – 9 Months
Tauranga District Court		Burgles (Oth Prop) ($500-$5000)By Ngt	2 July 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 16/08/1990 – 9 Months
Tauranga District Court		Theft Ex Car (Over $500)	1 July 1990	Convicted and Sentenced: Non-Residential Periodic Detention – 16/08/1990 – 9 Months
Tauranga Youth Court	2 November 1987	Wilful Damage	19 September 1987	Admonished: Reparation - $500
Tauranga Youth Court		Theft Property (Under $500)	6 September 1987	Case Proved and Sentenced (YC): Reparation - $4.33 / Social Welfare Supervision (YC) – 02/11/1987 – 3 Months / Additional Information – COM WORK 42HRS
Tauranga Youth Court		Wilful Damage	6 September 1987	Case Proved and Sentenced (YC): Reparation - $200 / Social Welfare Supervision (YC) – 02/11/1987 – 3 Months / Additional Information – COM WORK 42HRS

[2021] AATA 1624

4 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	10 & 17 May 2021
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Hannah Anderson, CLAYTON UTZ