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

Taoai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 154 (11 February 2020)
Division:GENERAL DIVISION
File Number: 2019/7656
Re:Roger Taoai
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:11 February 2020
Place:Sydney

The Tribunal affirms the decision under review.
................................[SGD]..............................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – convictions for multiple violent offences – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
11 February 2020
INTRODUCTION

The applicant, Mr Roger Taoai, seeks review of a decision by a delegate of the Minister, made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”), to cancel his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
The hearing was held in Sydney on 28 and 29 January 2020. As Mr Taoai had voluntarily returned to New Zealand in December 2019, he requested and was given leave to appear by telephone. Although legally represented during the pre-hearing process, Mr Taoai was self-represented at the hearing. The Minister was represented by Ms Perotti of Sparke Helmore Lawyers.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
The factual background is as follows:
(a)The applicant is a 38 year old citizen of New Zealand who has lived in Australia for approximately 20 years;[1]
(b)Since 2005 the applicant has been convicted of the following criminal offences:[2]
(i)‘Common assault’ in 2005, for which he was sentenced to a Community Service Order;
(ii)‘Assault occasioning actual bodily harm in the company of others’ in 2006, for which he was sentenced to 12 months imprisonment. Nine months of the sentence was suspended on the condition that the applicant entered into a 12-month supervisory bond;
(iii)‘Assault occasioning actual bodily harm’ and ‘Destroy or damage property (DV)’ in 2008, for which he was sentenced to a Community Service Order, 18-month bond, and was required to comply with an Apprehended Domestic Violence Order (“ADVO”);
(iv)Two counts of ‘Destroy or damage property (DV)’ in July 2017, for which he was sentenced to a 12-month supervisory bond; and
(v)On 22 May 2018 the applicant was convicted of: ‘Assault occasioning actual bodily harm (DV)’; ‘Common assault (DV)’; ‘Intentionally choke etc. person with recklessness (DV)’; ‘Contravene prohibition / restriction in AVO (Domestic)’; two counts of ‘Stalk/intimidate intend fear physical harm (domestic)’; and ‘Destroy or damage property <=$2000 (DV),’ for which he was sentenced to eight months imprisonment.
(c)On 1 June 2019 the applicant was informed that consideration was being given to cancel his visa on character grounds in accordance with s 501(2) of the Act,[3] which he acknowledged on 12 August 2019;[4]
(d)On 14 August 2019 representations were made on the applicant’s behalf by his then lawyer.[5] On 31 October 2019, after considering those representations, another delegate of the Minister decided to cancel the applicant’s visa;[6]
(e)On 15 November 2019 the visa cancellation decision was conveyed to the applicant’s authorised representative;[7]
(f)On 21 November 2019 the applicant asked the Tribunal to review the visa cancellation decision;[8] and
(g)After being released from prison the applicant voluntarily returned to New Zealand in December 2019. Because he is not in the migration zone the 84-day timeframe under s 500(6L) of the Act to make a decision in this matter does not apply.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501 of the Act.
Section 501(2) of the Act is one of a number of discrete powers conferred under s 501. It provides that:
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The character test is defined at s 501(6) - 501(12) of the Act and refers to a range of character matters to which the Minister or their delegate may have regard in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
If the Tribunal finds that the applicant fails the character test, it must then determine whether the discretion under s 501(2) of the Act to cancel his visa should be exercised.[9] Guidance in exercising the discretion is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[10]
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:
…
(2) … A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) …
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…cancel a non-citizen’s visa under section 501…The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply relevant considerations:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1) of the Direction outlines how a decision-maker is to exercise discretion. It provides that in cases relating to the cancellation of a visa, decision-makers must take into account the considerations at Part A of the Direction. If an applicant fails the character test, the following primary considerations at cl 9(1) must be applied to the specific circumstances of the case, in order to determine whether the discretion under s 501(2) of the Act should be exercised:
a.    Protection of the Australian community from criminal or other serious     conduct;
b.    The best interests of minor children in Australia; and
c.     Expectations of the Australian community.
Clause 10(1) of the Direction requires that other considerations to be taken into account include, but are not limited to:
a.    International non-refoulement obligations;
b.    Strength, nature and duration of ties;
c.     Impact on Australian business interests;
d.    Impact on victims; and
e.    Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
EVIDENCE BEFORE THE TRIBUNAL
“G-documents” numbering 136 pages were taken into evidence,[11] as was a bundle of summons material numbering 295 pages.[12]
Following a Directions Hearing on 6 December 2019 Mr Taoai was required to lodge with the Tribunal and give to the respondent by 10 January 2020 any witness statements and other evidence on which he intended to rely at the hearing, and a Statement of Facts, Issues and Contentions (“SFIC”). Mr Taoai did not comply with the Direction and the following subsequently occurred:
(a)The Tribunal contacted Mr Taoai regarding his non-compliance. He sought an extension of time until 20 January 2020 to source the additional character references, which the Tribunal approved;
(b)Mr Taoai failed to lodge any materials by 20 January 2020. The Tribunal contacted him the next day and he expressed an intention to lodge the character references by 23 January 2020. A Tribunal Officer informed him that no further extension beyond 23 January 2020 was possible given the proximity of the hearing. He was asked to provide more specific details about the materials he expected to source, what efforts he had made to obtain them in the seven weeks since the original Direction, and what had prevented him from doing so;
(c)Mr Taoai contacted the Tribunal on Wednesday 22 January 2020 at 5:18pm, seeking to adjourn the hearing. He claimed to be doing ‘long hours’ in his new job and was still waiting for some references. His request was not approved and Mr Taoai was advised that if he intended to call any additional witnesses, he needed to confirm their details and provide their statements prior to the hearing;
(d)On 27 January 2020, the Australia Day Public Holiday, Mr Taoai emailed the Tribunal advising that he intended to call eight character witnesses. The Tribunal only became aware of his intention on the morning of the hearing; and
(e)At the commencement of the hearing the respondent objected to witnesses being called without an accompanying statement. Mr Taoai explained that some witnesses were busy during the Christmas holidays and others were unsure of what to write.
The Tribunal decided to only hear from witnesses for whom a statement was lodged prior to the hearing. Mr Taoai had been given sufficient time to obtain the additional character references, including extensions of time at his request.
National Police Certificate
Mr Taoai did not dispute the information in his criminal history dated 5 November 2018,[13] which the Tribunal accepts is an accurate record of his offending.
Sentencing Remarks
The Tribunal notes the sentencing remarks from the Parramatta Local Court dated 22 May 2018[14] (“2018 sentencing remarks”), which are discussed later in these reasons.
Medical Evidence
There is no expert medical evidence that Mr Taoai suffers from any physical or psychological condition. In the section of his Personal Circumstances Form dated 12 August 2019 relating to any treatment currently being received by a doctor, health professional or counsellor, Mr Taoai wrote ‘N/A’.[15]
Applicant’s evidence
Mr Taoai’s written and oral submissions focussed primarily on the interests of his two children, remorse for his offending, determination not to reoffend, and the strength of his ties to Australia. His evidence can be summarised as follows:
(a)While not disputing the factual circumstances of his offending, Mr Taoai said he ‘was not the sort of person to hurt others,’ but was a caring man and remorseful for his past offending;
(b)When asked to elaborate on his most recent convictions in 2018 for violent offences against his former partner, Mr Taoai stated there were ‘so many unanswered questions,’ because he had ‘blacked out’ during the offending and could not ‘remember anything that happened.’ Mr Taoai was taken through his criminal history by Ms Perotti, which can be summarised as follows:
(i)Mr Taoai agreed with the police facts regarding his 2005 offence of ‘Common assault’ against his former partner, during which his eldest child was present.[16] He agreed that he was under the influence of alcohol at the time of this offending, but denied having ‘a drinking problem.’[17] He agreed that orders had been raised for his assessment and participation in programs to address his domestic violence and alcohol abuse;[18]
(ii)Despite completing an Anger Management Program in 2005,[19] Mr Taoai agreed he committed a further violent offence within 12 months (‘Assault occasioning actual bodily harm in company of others’) as described in the police fact sheet.[20] Mr Taoai said he had been drinking at the time of this offence but was not intoxicated. He only remembered punching the victim once rather than punching and kicking him repeatedly, but accepted that the CCTV footage was a more objective record of events than his recollections.[21] Mr Taoai remembered being sentenced to a 12 month good behaviour bond and various supervision and rehabilitation requirements. He recalled sending the victim a letter of apology, stating that he had ‘taken the right steps into bettering myself through anger management classes and alcohol abuse rehabilitation classes.’[22] Mr Taoai agreed that despite that claim, he was convicted of further offences in 2008 (‘Assault occasioning actual bodily harm’ and ‘ Destroy or damage property’);
(iii)Mr Taoai agreed that records relating to his 2008 conviction for domestic violence were accurate,^{^[23]} and that he was intoxicated at the time of the offending. He did not recall the specific events but stated: ‘reading it sounds ugly.’ He recalled being sentenced to 150 hours of community service and an ADVO being put in place to protect his former partner. He could not recall if he missed multiple interviews or received warnings for poor compliance. When referred to records in evidence about multiple missed interviews and poor compliance,[24] Mr Taoai accepted the accuracy of the records. Mr Taoai accepted he did not effectively address the underlying causes of his offending, nor complete any programs during this period;
(iv)Mr Taoai agreed that he pleaded guilty to property damage offences in 2017 consistent with the police fact sheet.[25] This offending had occurred after a night of drinking and he agreed his former partner and daughters would have been scared by his conduct in punching a door they were sheltering behind, causing the door to crumble; and
(v)Mr Taoai agreed he was convicted of seven offences in 2018 while subject to a bond and AVO. He claimed to have ‘blacked out’ from heavy alcohol consumption and could not recall the details. He agreed that the police fact sheet was an accurate record, including that his two daughters intervened to protect their mother.[26] Mr Taoai agreed his daughters were scared and put at risk by his conduct. He agreed that his daughters were the victims of the stalking offences he was convicted of.
(c)Mr Taoai attributed all of his offending to a ‘problem with alcohol’ and ‘not knowing my limits.’ He agreed that after drinking too much he became violent and destroyed property. He claimed to have frequently engaged in binge drinking in the past, but had now ‘grown up,’ was ‘older and wiser,’ and had taken his alcohol consumption ‘back down to zero.’ He claimed to have stopped drinking alcohol following his 2018 convictions. When asked if he agreed that the link between alcohol abuse and offending reflected a ‘pattern,’ Mr Taoai said it did, but was nevertheless inconsistent with his true character. He claimed there had been ‘other cases where I’ve drunk alcohol but not been violent…it’s very hard to explain’;
(d)Mr Taoai submitted he was no longer at risk of reoffending. After considerable self-reflection he realised the damaging consequences of his actions and was determined not to reoffend. He wanted to become a role model for his daughters;
(e)When asked about rehabilitation, Mr Taoai said he had attended Alcoholics Anonymous (“AA”) and a domestic violence course after release from prison in 2018, but could not recall when. In response to questions, Mr Taoai said he had lost the certificate and efforts to ‘chase it down’ with the John Moroney Correctional Centre were unsuccessful. When it was put to Mr Taoai that his response to supervision upon release was recorded as ‘borderline satisfactory’ and he ‘failed to engage with an external referral to a DV (domestic violence) program that the CCO directed him to attend,’[27] Mr Taoai agreed there was no corroborating evidence about him completing any rehabilitation related to domestic violence or alcohol abuse. When asked why he continued to reoffend despite earlier rehabilitative opportunities, Mr Taoai conceded his ‘priorities at the time were wrong,’ because he ‘couldn’t take time off work and something always came up’. He agreed with Ms Perotti there was no corroborating evidence his priorities were now in the correct order, or that he had ‘enrolled in any programs.’ Mr Taoai said his full-time work still impeded engagement with such programs, but he had nevertheless managed to achieve abstinence from alcohol without assistance;
(f)Mr Taoai said his closest family and social ties were in Australia. Despite separating from his former partner in 2018, he had since re-established a close relationship with his daughters. They had initially been shocked by his violence but he had gradually reconciled with them and continued to provide financial support, including helping his eldest daughter finance a car. Both his daughters work full-time and live with their mother. When asked if his daughters were financially independent, Mr Taoai responded: ‘Yes’;
(g)Mr Taoai said he had a close relationship with his elderly parents, two sisters and approximately twenty cousins in Australia. He ‘chipped in’ with his siblings and other family members to help his parents with medical and other expenses. His sisters have four children between them under 18 years of age. Mr Taoai said he ‘did not play a major role’ in the children’s lives and mainly saw them at large family events. He considered himself a ‘favourite uncle’ and occasionally provided the children with ‘money here and there.’
(h)Mr Taoai said he had worked consistently since arriving in Australia as a ‘security guard in pubs and clubs’, driving trucks, in warehouses, in factories and in the building industry. Since returning to New Zealand he had secured work as a concreter earning approximately NZ$1000 per week. He rented accommodation and had reconnected with some cousins in New Zealand who he had ‘seen a few times.’ He had not yet established a social group. Mr Taoai said he kept in touch with his daughters through telephone calls, messaging and social media; and
(i)Mr Taoai asked for a ‘second chance’ to remain in Australia, claiming he had ‘changed as a person’ and was motivated by his daughters to be a better man. When asked why the interests of his daughters and other factors like stable accommodation and employment in Australia had not prevented his previous offending, Mr Taoai said he had ‘got caught up with bad crowds,’ but had since severed those links.
Evidence of Mr Taoai’s eldest daughter

The Tribunal heard oral evidence from Mr Taoai’s eldest daughter, who the Tribunal will refer to as “IM”. IM’s evidence can be summarised as follows:
(a)IM adopted her letter dated 12 August 2019 as her statement in these proceedings;[28]
(b)IM said she cannot recall last contact with her biological father and considers Mr Taoai to be her father. She maintained close contact with Mr Taoai, even on those occasions when he was not in the family home. She relies on him for emotional, practical and financial support. Mr Taoai’s immigration circumstances had affected her deeply, including loss of appetite, weight loss and depression, although she has not sought medical assistance or had any conditions diagnosed;
(c)IM confirmed she works full-time and earns approximately $600 per week. She lives with her mother and contributes $200 weekly for living expenses. IM does not consider herself financially independent and receives assistance on occasions from her parents if required. Mr Taoai had helped fund her first car;
(d)When asked if she was aware of the totality of Mr Taoai’s offending, IM replied ‘not really.’ She thought it was ‘just the one incident’ for which he had been imprisoned in 2018, and for which she had ‘forgiven him.’ She stated that any previous offending had not affected her; and
(e)Since Mr Taoai returned to New Zealand, they kept in touch via telephone and social media. She intends to visit her father in New Zealand and has completed her passport application.
Evidence of Mr Taoai’s youngest daughter
The Tribunal heard oral evidence from Mr Taoai’s youngest daughter who the Tribunal will refer to as “MZ”. MZ’s evidence can be summarised as follows:
(a)MZ adopted her letter dated 12 August 2019 as her statement in these proceedings;[29]
(b)MZ described Mr Taoai as a loving and reliable father who supported her every decision and was her ‘primary guardian.’ Her parents separated two years ago and MZ lived with Mr Taoai in 2018 and 2019 for about three months on each occasion, to ‘get back lost time’. She wants her father to be close to her in Australia for continuing emotional support;
(c)MZ confirmed she works full-time and earns between $500 and $700 per week. She lives with her mother and contributes approximately $300 per fortnight for living expenses. Her parents provide her with funds on occasions. Mr Taoai provides her with some money ‘every couple of weeks’ to spend on herself, which she sometimes uses to assist her mother. MZ does not consider herself financially independent given she has not yet competed her vocational training. She agreed with Ms Perotti that by working and contributing to rent and groceries, she was ‘acting as an adult’ even though she does not turn 18 until mid-2020;
(d)MZ agreed there had been times when Mr Taoai was a negative influence and because of his drinking she was exposed to violence in the home. She claimed to be aware of Mr Taoai’s full offending history, but did not think he had been violent against other people beyond his domestic violence offences;
(e)Since Mr Taoai’s return to New Zealand they have kept in touch via telephone and social media. She intends visiting her father in New Zealand but ‘not regularly because it’s very expensive.’ She has completed her passport application and is saving to pay the required processing fee.
Evidence of Mr Taoai’s eldest sister
The Tribunal heard oral evidence from Mr Taoai’s eldest sister, who the Tribunal will refer to as “ST”. ST’s evidence can be summarised as follows:
(a)ST adopted an undated letter as her statement in these proceedings.[30] She lives and works in Sydney and her partner works as a forklift driver;
(b)ST described Mr Taoai as ‘outgoing, bubbly, friendly’ and always going out of his way to help others. While in Australia Mr Taoai would sometimes babysit her children but played no ongoing caregiver role, because she and her partner provided day-to-day parental care. On occasions, Mr Taoai would also help her out financially, most recently before he left for New Zealand. He may also help her out financially in the future, but she stated: ‘money is not great in New Zealand’;
(c)ST knew Mr Taoai’s offending involved domestic violence against his former partner and that he had ‘assaulted someone out in public’. She said his offending occurred ‘only when it involved alcohol.’ ST claimed that in the past Mr Taoai would regularly drink to excess, but following his imprisonment would now have just ‘one or a couple’ of drinks rather than ‘standing at the bar going full bore’;
(d)She had recently visited New Zealand with her children for 11 days. Four or five of those days were spent in Auckland during which she stayed at a cousin’s home and spent time with Mr Taoai. She said that Mr Taoai had secured a full-time job as a concreter with the assistance of his former employer in Sydney. He had also reconnected with two cousins in Auckland.
DOES THE APPLICANT PASS THE CHARACTER TEST?
In August 2019 Mr Taoai’s former lawyer submitted that because the May 2018 sentence only resulted in an aggregate of eight months imprisonment, instead of the 12 month threshold constituting a ‘substantial criminal record’, this suggested Mr Taoai was ‘not a person of bad character as outlined in the legislation,’ and was ‘therefore entitled to remain in Australia.’ That submission ignores Mr Taoai’s sentence of 12 months imprisonment by the Liverpool Local Court on 8 November 2006, nine months of which was suspended on the condition that he entered a 12-month supervisory bond. The Tribunal notes the Full Federal Court’s elaboration in Brown[31] in this regard:
The focus…is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be or subsequently may be, served.
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Taoai does not pass the character test.
ISSUE TO BE RESOLVED
The issue to be determined is whether the discretion under s 501(2) of the Act to cancel Mr Taoai’s visa should be exercised.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 9.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also 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.
Paragraph 9.1.1(1) sets out factors that decision-makers must consider in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Tribunal consideration: The nature and seriousness of the conduct
Mr Taoai was 24 years of age when first convicted of a violent offence (‘Common assault’) and 37 years of age when convicted of his most recent violent offences in 2018. He has also committed multiple property damage offences, stalking offences in which the victims were his daughters, contravened an ADVO, and offended while on a bond. Although there is a nine-year gap between 2008 and 2016 where no convictions are recorded, Mr Taoai was subsequently convicted of serious offences in 2017 and 2018.
In the 2018 sentencing remarks, His Honour considered that Mr Taoai’s offending was aggravated by having been committed while on conditional liberty and against a much smaller female partner in the presence of their children.[32] It was noted that Mr Taoai choked his partner, spat into her face, and the couple’s two daughters intervened to stop the attack, including by calling the police. This offending resulted in Mr Taoai’s first custodial sentence. The courts dealt with his earlier offending between 2005 and 2017 through suspended sentences and other conditional liberty provisions.
Mr Taoai agreed that the assault against his former partner was serious and contextualised it as occurring ‘after a night of drinking at the pub.’[33] He expressed shame for his conduct and, despite being unable to ‘recall much of what happened that night,’ he nevertheless claimed it was ‘out of character.’[34]
In relation to his other offending, Mr Taoai stated:
‘Prior to this incident I had a couple of assault charges resulting from a couple of fights I had in 2005 and 2008. Again I am not proud of this behaviour.’[35]
The respondent submits[36] that Mr Taoai’s offending is serious given he has committed several violent crimes against a woman (his former domestic partner), most recently in the presence of his daughters. It is submitted this offending breached an ADVO in place to protect the victim and occurred whilst Mr Taoai was subject to a bond for previous offending. The respondent contends that the imposition of a sentence of imprisonment reflects ‘the object seriousness of the offences involved.’ The respondent points out that Mr Taoai has also participated in an unprovoked attack on a victim who was not known to him, repeatedly punching the victim and chasing him.
Tribunal findings: The nature and seriousness of the conduct
The following aspects of cl 9.1.1(1) of the Direction are relevant to the specific circumstances of the applicant’s case:
(a)9.1.1(1)(a)-(c): Mr Taoai’s past offending has been violent, serious, and has occurred while on conditional liberty. His Honour observed during sentencing in 2018 that Mr Taoai’s offending was ‘made worse…because it is an assault on a female…by somebody who weighs about 100 kilos and there were children present at the time.’ This was not the first violent assault by Mr Taoai against the same former partner, who was under the protection of an ADVO. Mr Taoai’s children were also the victims of his 2018 stalking offences. A woman and her two female children in these circumstances are plainly vulnerable members of the community;
(b)9.1.1(1)(f): The Court’s imposition of a custodial sentence is the last resort in the available sentencing options. Mr Taoai has previously received a twelve-month sentence of imprisonment in 2006 and an eight-month sentence in 2018;
(c)9.1.1(1)(g)-(h): Mr Taoai’s offending is not isolated, impulsive, or solely ‘in his youth.’[37] He was convicted of violent offences in 2005, 2006, 2008, and 2018. His 2018 convictions were when he was in his mid-30s. The cumulative effect of Mr Taoai’s offending has come at a considerable cost to the community, including through the effect on victims and intervention by police, the courts, and in providing oversight of Mr Taoai’s conditional liberty provisions.
For the reasons outlined above Mr Taoai’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 9.1.2 of the Direction states in part:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 it may be repeated may be unacceptable.
(2) In considering the risk 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 re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving                 weight to time spent in the community since their most recent offence   (noting that decisions should not be delayed in order for rehabilitative   courses to be undertaken).
Determining if a person constitutes an unacceptable risk requires an assessment of the likelihood of recidivism and its consequences.[38] Kenny J has pointed out that such assessments must be founded on a ‘rational and probative basis.’[39]
In relation to the most recent assault of his former partner, Mr Taoai claimed he had ‘not acted like that before and [did] not intend to act like that again.’[40] When given an opportunity to elaborate on the factors underlying his conduct, Mr Taoai submitted he could not explain what happened.[41] During the present hearing Mr Taoai states he ‘blacked out’ and has no memory of the offending.
In relation to rehabilitation, Mr Taoai claims to have completed courses in ‘domestic violence, drug & alcohol, and anger management.’ He also claims to have stopped drinking alcohol following his 2018 convictions and has continued in sobriety since.’[42] He promises not to act violently again.[43] No corroborating evidence in the form of course completion reports or expert evidence was tendered in support of his rehabilitative claims or recidivism risk. The Tribunal notes the submission of Mr Taoai’s eldest sister, that she believes he will never repeat previous mistakes.[44]
The respondent’s submissions include that alcohol has played a significant role in Mr Taoai’s offending and there is presently no independent evidence in the form of a psychological or other medical report regarding his risk of recidivism.[45]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that:
(a)Mr Taoai’s expressions of remorse for his latest offending sit uneasily with previous acts of violence against the same partner. The persistence of his violent conduct elevates concerns about the extent of his insight and the genuineness of his aspirations for enduring change;
(b)The nature of harm to members of the Australian community arising from a repeat of Mr Taoai’s offending is potentially very serious. It encompasses major injury or death as a result of offences like ‘Assault occasioning actual bodily harm’ or ‘Intentionally choke person with recklessness (DV)’. He has committed domestic violence on three occasions against the same female partner and against a member of the public who was not known to him. It is an aggravating feature of Mr Taoai’s latest violent offending that it occurred while he was on conditional liberty and breached an ADVO protecting his former partner;
(c)Consistent with the 2018 sentencing remarks, Mr Taoai’s chances of rehabilitation are favourable if he genuinely abstains from alcohol abuse. But the evidence shows he hasn’t been able to do so in the past despite rehabilitative opportunities. Mr Taoai’s evidence is that he was heavily intoxicated or affected by alcohol when committing all of his offences. The persistent link between alcohol abuse and violent offending elevates recidivism concerns. That is particularly so given the inconsistency between his claims about being totally abstinent from alcohol since 2018 and his sister’s evidence, which is that he has reduced his alcohol intake to ‘one or a couple,’ but no longer stands ‘at the bar going full bore’. The Tribunal has treated Mr Taoai’s evidence about alcohol consumption with caution. Given the persistent pattern reflected in his criminal record, his less than committed approach to past rehabilitative opportunities, and lack of corroborating expert evidence about rehabilitative progress and recidivism risk, little weight is placed on Mr Taoai’s claims alone;
(d)In contrast to Mr Taoai’s submissions, the evidence shows he has reoffended after completing past rehabilitative courses and promising to change his ways. He denied a drinking problem in 2005 and promised not to ‘behave in such a way again.’[46] He attended an Anger Management Program in 2005[47] and said he would change his ways, but reoffended a year later. He wrote to the victim of his ‘Assault occasioning actual bodily harm in company’ offence in July 2006[48] promising to ‘take the right steps into bettering myself through anger management classes and alcohol rehabilitation classes’, but committed another violent offence approximately 18 months later. His engagement with reporting requirements in 2009 was poor and inconsistent,[49] during which he again ‘denied any problematic drinking.’[50] More recently, following his release from prison in 2018, his response to supervision was described as ‘borderline satisfactory’ and he ‘failed to engage with an external referral to a DV program that the CCO directed him to attend.’[51] Mr Taoai concedes his prioritisation of rehabilitation in the past was insufficient, but has not enrolled in any programs since release from prison. The Tribunal is unpersuaded that Mr Taoai has effectively addressed his treatment needs in the areas of alcohol abuse and violence. Moreover, any rehabilitative progress he has made since 2018 is relatively recent and untested in the Australian community for any meaningful length of time; and
(e)Mr Taoai invokes the interests of his two daughters as motivating positive change, which is an admirable but previously unsuccessful motivating factor. The interests of his two children, stable accommodation, employment, and the continuing support of his parents, siblings and friends did not dissuade him from violent offending in the past, including in the presence of his children.
There is a real risk Mr Taoai will relapse into alcohol abuse and reoffend. The likely harm resulting from such reoffending is serious and any likelihood of repetition is unacceptable. The nature and seriousness of his crimes, coupled with an unacceptable risk of recidivism, weighs substantially in favour of exercising the discretion to cancel his visa.
Tribunal consideration: Best interests of minor children in Australia
Clause 9.2 of the Direction requires decision-makers to make a determination about whether cancellation is, or is not, in the best interests of the child. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made. It is not required that the applicant has a parental relationship with the child in question. 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.
In considering the best interests of the child, the Direction requires the following factors at cl 9.2(4) to 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

Mr Taoai submits he is close to his daughters who ‘mean the world’ to him.[52] He is concerned their relationship will be adversely affected if he was unable to return to Australia, and he ‘may not be able to work or have sufficient money’ to provide financially for his daughters if living in New Zealand.[53]
The Tribunal has had regard to the letters and oral evidence of both Mr Taoai’s daughters,[54] but only MZ’s evidence is relevant in the context of this primary consideration. IM’s evidence is considered later in ‘Strength, nature and duration of ties.’
MZ’s evidence is that she works full-time, contributes to rent and groceries at her mother’s home and pays her own phone bill. She expresses her motivation for living with her mother as helping support her mother instead of being dependent on her mother.
The Tribunal notes the oral evidence of ST that Mr Taoai sometimes babysat her children. His evidence is that he does ‘not play a major role’ in the lives of his sister’s four children under 18 years of age, but was more of a ‘favourite uncle’ who occasionally provides them with ‘money here and there.’
The respondent submits that given MZ turns 18 in July 2020, ‘less weight should be given to this consideration in accordance with paragraph 9.2(4)(b) of Direction 79.’[55] The respondent also points to a lack of evidence regarding the parental role Mr Taoai plays in relation to his youngest daughter and the absence of ‘any Court orders relating to parental access and care arrangements.’ During closing submissions, Ms Perotti submitted there was no evidence that MZ was reliant on Mr Taoai’s financial contribution, which consisted of ‘occasional financial support.’ Moreover, in view of Mr Taoai’s violent conduct in the presence of MZ, ‘the Tribunal cannot be satisfied…[he]…would have a positive role’ in her life if residing in Australia.[56]
Tribunal findings: Best interests of minor children in Australia
MZ’s interests are invoked within the meaning of the Direction, as are the interests of Mr Taoai’s four nieces and nephews who are under 18. The following findings are made in relation to cl 9.2(4) of the Direction:
(a)Mr Taoai does not play a parental role in the lives of his nieces and nephews. He has babysat them on occasions and provided unspecified amounts of money from time to time as a ‘favourite uncle.’ He does not play a parental role and the available evidence does not enable the individual interests of these children to be differentiated. It can be accepted from ST’s evidence, however, that Mr Taoai has a close relationship with his nieces and nephews who would miss him if he were unable to return to Australia;
(b)Mr Taoai has a close and loving parental relationship with MZ, whose upbringing he has consistently been a part of and who relies on him for emotional and practical support;
(c)MZ lived with Mr Taoai for two three-month periods in 2018 and 2019, but has predominantly lived with her mother and continues to do so;
(d)Taking into account that MZ turns 18 within six months and is in full-time work, less weight is placed on this consideration given the limited time until her adulthood;
(e)The Tribunal accepts that Mr Taoai makes voluntary financial contributions to MZ from time to time, but she is not financially dependent on him; and
(f)The Tribunal accepts that cancellation of Mr Taoai’s visa is likely to have an adverse emotional effect on MZ. That being said, he has continued the relationship with MZ after relocating to New Zealand, and there is no evidence she could not visit him. The Tribunal notes MZ is obtaining a passport for that purpose.
The Tribunal accepts it is in the best interests of Mr Taoai’s youngest daughter and his nieces and nephews that he remains in Australia, but this primary consideration weighs, at best, moderately against exercising the discretion to cancel his visa.
Tribunal consideration: Expectations of the Australian community
Clause 9.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to the previous Direction No. 65 and a visa refusal decision, it is in substantially identical wording to cl 9.3 of the current Direction relating to visa cancellation. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[57] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community.’[58] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but is ‘in all cases left for the decision-maker to determine.’[59] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion, and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations,’ which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[60]
Mr Taoai submits in a Statutory Declaration dated 12 August 2019 that he takes his ‘continued residence in Australia as a great honour and a privilege…’[61] He asks for another opportunity to remain in Australia and, if permitted to do so, expresses an intention to live a law-abiding life.
The respondent submits that in light of Mr Taoai’s serious and violent offending, as well the potential consequences of further offending, the Australian community would expect he ‘should be seen as having forfeited the privilege of staying in Australia such that he should not hold a visa.’[62]
Tribunal findings: Expectations of the Australian community
Mr Taoai’s criminal history contradicts his claim about acknowledging the privilege of extended residence in Australia. He has committed multiple serious breaches of Australian laws. The nature of his violent offences, including against his former partner in the presence of their children and against another victim not known to him, is such that the Australian community would expect he should not hold a visa. This primary consideration weighs substantially in favour of exercising the discretion to cancel his visa.
OTHER CONSIDERATIONS
Mr Taoai did not raise any claims, nor does the evidence disclose, that ‘International non-refoulement obligations’ are a relevant consideration in this matter. In relation to ‘Impact on Australian business interests’ Mr Taoai’s former Australian employer stated in an email dated 23 June 2019,[63] that he ‘found it extremely hard to find a worker’ comparable to Mr Taoai. But having regard to the evidence, the Tribunal considers ‘Impact on Australian business interests’ is not enlivened. There is no corroborating evidence that Mr Taoai’s absence from his previous employment (in a concrete firm) has had any significant impact on company operations, or risks compromising the delivery of a major project, or delivery of an important service in Australia. His former employer was not called to give oral evidence at the hearing and the written submissions rise no higher than it being ‘extremely hard’ to replace Mr Taoai with someone of comparable quality. The evidence does not displace the presumption in the Direction that weight would generally only be given where visa cancellation significantly compromises the delivery of a major project, or delivery of an important service. This consideration is consequently given no weight.
Tribunal consideration: Strength, nature and duration of ties
Clause 10.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Taoai has lived in Australia for approximately 20 years, having arrived here as an adult. He refers to his two daughters, elderly parents, two sisters, cousins, other distant relatives and a circle of friends living in Australia.
When asked what contribution he has made to Australia, Mr Taoai states: ‘Hard working. I have never received any welfare payments in Australia.’[64] He claims to have worked since 1997 as a labourer and forklift driver in the building and construction industry,[65] but states: ‘I cannot recall the dates and names of employers but have been in gainful employment in the building and construction industry since my arrival in Australia.’
In relation to the effect of visa cancellation on his family, Mr Taoai stated that his daughters are upset and he fears they would be ‘denied a relationship with their father.’[66] He expresses concern about not being able to provide financially for his daughters in New Zealand, because he ‘may not be able to work.’[67] In relation to his parents, Mr Taoai submits they are elderly and he wants to ‘live with them in their final days.’[68] There is no evidence before the Tribunal from Mr Taoai’s parents, or in relation to their financial, medical or other circumstances.
The respondent submits that ‘other than paying tax there is no evidence of any specific positive contributions’ Mr Taoai may have made to the Australian community. The respondent acknowledges Mr Taoai’s family and social links in Australia, including with his parents, two sisters and children. The respondent submits, however, that ‘there is no evidence of the role the applicant plays in his parents’ lives or what impact removal may have on them.’[69]
Tribunal findings: Strength, nature and duration of ties
Mr Taoai has lived in Australia for approximately 20 years. The Tribunal accepts he has worked in the building and construction industry[70] and paid taxes, as evidenced by tax assessments for financial years ending 30 June 2013 to 30 June 2018.[71] Although there is no corroborating evidence for work prior to 2013, the Tribunal accepts Mr Taoai has worked consistently in Australia and has a good work ethic. More weight is placed on this consideration to reflect the positive contribution he has made.
Mr Taoai commenced a relationship after arriving in Australia and has a biological child, MZ, with his former partner. He is also step-father to IM. The Tribunal accepts that despite no longer being in a relationship with his former partner, Mr Taoai continues to have a close relationship with both daughters who very much value his role in their lives.
The Tribunal accepts Mr Taoai is close to his sisters, parents and cousins, and has an established social network in Australia. It is clear that after living here for two decades, Mr Taoai’s strongest family and social ties are to members of the Australian community, many of whom would be deeply saddened if he was unable to return. There is no evidence, however, that relatives or friends could not visit him in New Zealand, or maintain contact in other ways.
The Tribunal finds on balance that this consideration nevertheless weighs substantially against exercising the discretion to cancel Mr Taoai’s visa.
Impact on victims
Clause 10.4(1) of the Direction states:
Impact of a decision not to cancel a visa 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 that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.
The Federal Court has previously held that this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[72]
IM and MZ are also victims of Mr Taoai’s offending.[73] During their oral evidence they acknowledged being scared during Mr Taoai’s domestic violence in their presence. Both say they have since rebuilt the relationship with their father and want him to be a part of their lives in Australia. Those submissions, however, must be viewed in the context of the totality of the evidence, including previous incidents of domestic violence and the Tribunal’s adverse findings regarding the incomplete nature of Mr Taoai’s rehabilitation and risk of recidivism. In weighing the impact of a decision not to cancel Mr Taoai’s visa on victims, with the potential risk of future harm, the Tribunal finds this consideration has neutral impact.
Tribunal consideration: Extent of impediments if removed
Clause 10.5(1) of the Direction states that:
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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Taoai is 38 years old and stated in his August 2019 Personal Circumstances Form that he is not currently being treated by any doctor, health professional or counsellor.[74] His evidence is that he wants to continue working for the foreseeable future to provide for himself and contribute financially to his children. During the hearing Mr Taoai confirmed that since returning to New Zealand in late 2019, he had secured rental accommodation and full-time work, for which he earns approximately NZ$1000 per week. He had also reconnected with some cousins in New Zealand who he had ‘seen a few times,’ but had not yet established a social group.
The respondent submits that Mr Taoai ‘is a youthful man’ without ‘any significant health issues.[75] While acknowledging he may face some difficulty in re-establishing himself in New Zealand after a lengthy period of residence in Australia, the respondent notes Mr Taoai returned to New Zealand in 2019 and has since found stable accommodation and employment. Moreover, he has reconnected with some family members.
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)Mr Taoai was raised in New Zealand and arrived in Australia as a young adult. He voluntarily returned to New Zealand in December 2019 and there is no apparent cultural or language impediment arising from that decision;
(b)Mr Taoai stated in earlier written submissions that he feared not having ‘any means of surviving in New Zealand’,[76] but in his oral evidence confirmed he was in fulltime work in New Zealand, earning approximately NZ$1000 per week;
(c)Mr Taoai does not raise any medical or psychological condition that could be considered an impediment. If such a condition did arise, there is no evidence he would not have access to the same level of healthcare and support available to other New Zealand citizens; and
(d)Mr Taoai’s voluntary decision to return to New Zealand has separated him from his closest family in Australia, who the Tribunal accepts are his principal sources of emotional support. He has limited contact with a few cousins in New Zealand and maintains contact with Australian family members by telephone and social media. There is no evidence that Mr Taoai’s family and friends in Australia could not visit him in New Zealand if they wished. ST has recently returned from a visit to New Zealand where she saw Mr Taoai over a four to five day period. Both of his daughters have taken steps to obtain Australian passports in order to visit Mr Taoai if his current application is unsuccessful.
Mr Taoai has successfully re-established himself in New Zealand and this consideration has neutral impact in relation to the discretion to cancel his visa.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 10(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Taoai does not pass the character test.
In determining whether the discretion under s 501(2) of the Act to cancel his visa should be exercised, the Tribunal notes the serious and repeated nature of Mr Taoai’s violent offending, including while under conditional liberty arrangements and in breach of an ADVO protecting his former partner. Mr Taoai has failed to take advantage of the court’s previous leniency or to seize rehabilitative opportunities. His offending is not isolated, impulsive, or solely a product of his youth. He first offended in Australia as an adult and his violent offending has continued into his mid-30s. There is a persistent connection between Mr Taoai’s abuse of alcohol and violent conduct. There is no reliable evidence to conclude that his tendency to abuse alcohol has been persuasively ameliorated through rehabilitative courses or counselling. The evidence supports a finding that the risk of Mr Taoai committing further violent offences is real and unacceptable.
IM is an adult. MZ is currently 17 years of age, lives with her mother, and turns 18 in July 2020. Mr Taoai is also uncle to four nieces and nephews under 18 whose interests he did not particularise. There is no doubt Mr Taoai has a close and loving relationship with MZ. Both derive considerable emotional support from that bond and there would clearly be an adverse emotional impact on her if Mr Taoai could not return to Australia. But there is no evidence they could not maintain contact in other ways or that MZ could not visit him in New Zealand if she wished. On balance, however, the Tribunal accepts it is in the best interests of MZ and Mr Taoai’s nieces and nephews that the discretion to cancel his visa is not exercised.

Having regard to the totality of Mr Taoai’s offending, he has breached the privilege granted to visa holders to remain in Australia. The community’s expectations weigh in favour of exercising the discretion to cancel his visa.
Mr Taoai’s strongest family and social ties are with the Australian community. His relatives, friends, and work colleagues would be saddened by a decision to cancel his visa. There is no evidence, however, they could not visit him in New Zealand as his sister has recently done, or maintain contact in other ways, as has been the case since he voluntary returned to New Zealand in 2019. Both of his daughters are progressing passport applications to enable such visits if required.
There is no apparent cultural or language impediment arising from Mr Taoai’s return to New Zealand. He has re-established himself, including by finding stable accommodation and full-time work. Contrary to the concerns expressed in his written submissions, he has also been able to make periodic financial contributions to his daughters in Australia.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds the discretion should be exercised to cancel Mr Taoai’s visa. That is because the primary considerations of ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh substantially in favour of cancellation. These considerably outweigh the primary consideration ‘Best interests of minor children,’ which weighs moderately against visa cancellation and the other consideration of ‘Strength, nature and duration of ties’ which weighs substantially in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

................................[SGD]...............................
Associate
Dated: 11 February 2020

Date(s) of hearing: 28 and 29 January 2020

Applicant: In person

Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers

[1] Exhibit R1, 50-51.
[2] Ibid, 27-29.
[3] Ibid, 52-56.
[4] Ibid, 57.
[5] Ibid, 61-90.
[6] Ibid, 13-26.
[7] Ibid, 7.
[8] Ibid, 1-6.
[9] The Federal Court has reinforced the importance of adhering to the two-step process mandated by s 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing).
[10] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
[11] Exhibit R1.
[12] Exhibit R2.
[13] Exhibit R1, 27-29.
[14] Ibid, 30-36.
[15] Ibid, 78.
[16] Exhibit R2, 31-32.
[17] Ibid, 38.
[18] Ibid, 28.
[19] Exhibit R2, 160.
[20] Exhibit R1, 39-42.
[21] Ibid, 41.
[22] Exhibit R2, 78.
[23] Ibid, 8-9; 290-293.
[24] Ibid, 201-216
[25] Ibid, 57-58.
[26] Ibid, 109-110.
[27] Ibid,156.
[28] Exhibit R1, 86.
[29] Ibid, 85.
[30] Ibid, 87.
[31] Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [7] and [12].
[32] Exhibit R1, 33 [35]; 34 [10]-[12].
[33] Ibid, 81 [7].
[34] Ibid 81 [8].
[35] Ibid 81 [9].
[36] Statement of Facts, Issues and Contentions (“SFIC”) dated 23 January 2020 at [18]-[21].
[37] Exhibit R1, 63-64 [22].
[38] Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 at [111].
[39] Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41].
[40] Exhibit R1, 76.
[41] Ibid.
[42] Ibid, 76; 82 [12]-[13].
[43] Ibid, 82 [16].
[44] Ibid, 87.
[45] SFIC, [22]-[29].
[46] Exhibit R2, 295.
[47] Ibid, 160.
[48] Ibid, 78.
[49] Ibid, 213-216.
[50] Ibid, 214.
[51] Ibid, 156.
[52] Ibid, 72.
[53] Ibid.
[54] Ibid, 85-86.
[55] SFIC, [30]-[34].
[56] Exhibit R2, [33].
[57] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[58] FYBR at [104] per Stewart J.
[59] FYBR at [75]-[76] per Charlesworth J.
[60] FYBR at [76] per Charlesworth J.
[61] Exhibit R1, 82.
[62] SFIC, [38].
[63] Exhibit R1, 89.
[64] Ibid, 78.
[65] Ibid, 77.
[66] Ibid, 72.
[67] Ibid.
[68] Ibid, 75.
[69] SFIC, [42].
[70] Exhibit R1, 77; 88-90.
[71] Ibid, 91-102.
[72] HVLC v Minister for Home Affairs [2019] FCA 616 at [13] per Colvin J.
[73] Exhibit R2, 101; 103.
[74] Exhibit R1, 78.
[75] SFIC, 47.
[76] Exhibit R1, 79.

[2020] AATA 154

11 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing

Date(s) of hearing:	28 and 29 January 2020
Applicant:	In person
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers