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

Tapiki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1228 (11 May 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0966
Re:Kingston Tapiki
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:11 May 2021
Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 15 February 2021, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth), is affirmed.
...................................[SGD].....................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – review of decision not to revoke mandatory cancellation of Applicant’s visa – provisions of the Migration Act 1958 (Cth) considered, particularly sections 501 and 501CA – Direction no. 90 considered – applicant’s background and other characteristics/factors considered – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143
SECONDARY MATERIALS
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
Mr S Evans, Member
11 May 2021

The applicant, Kingston Tapiki (“Mr Tapiki”) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) not to revoke the mandatory cancellation of his visa.
INTRODUCTION
Mr Tapiki’s visa was cancelled on 29 October 2020 under subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”). On 13 November 2020, Mr Tapiki made representations seeking revocation of the mandatory cancellation. On 15 February 2021 a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa. On 18 February 2021 Mr Tapiki applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Tapiki’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
·that the Applicant passes the character test as defined by subsection 501(6) of the Act; or
·that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
DOES MR TAPIKI PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Under paragraph 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in paragraph 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.”
Failure of the character test arises as a matter of law. On 30 September 2020, Mr Tapiki was convicted of stalk/intimidate intend fear physical etc harm (personal), affray, assault occasioning actual bodily harm and armed w/I commit indictable offence for which he was directed to enter into a community corrections order (CCO) for the stalk/intimidate offence, and sentenced to an aggregate sentence of 12 months’ imprisonment for the remaining offences. I am satisfied that Mr Tapiki has a substantial criminal record and fails the character test for the purposes of subparagraph 501CA(4)(b)(ii).
As Mr Tapiki does not pass the character test, and he has made representations of the kind referred to in paragraph 501CA(4)(a), it is necessary to decide whether there is another reason the original decision should be revoked.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Paragraph 501(7)(c) further provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which must be complied with by decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing Mr Tapiki’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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 measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time. 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 measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.
The primary considerations in the Direction are:
1protection of the Australian community from criminal or other serious conduct;
2family violence committed by the non-citizen;
3best interests of minor children in Australia; and
4expectations of the Australian Community.
Direction 90 also sets out other considerations which must be taken into account where relevant which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
BACKGROUND
Mr Tapiki is a 27 year old New Zealand national who first arrived in Australia on 29 April 1995 when he was 18 months of age. His parents, twin brother and two sisters reside in Australia.
References
Before the Tribunal are references for Mr Tapiki which include one from his brother, Kalton Tapiki, Kalton Tapiki writes on 4 December 2020 that he is Mr Tapiki’s twin brother. He writes that in 2018 Mr Tapiki’s mental health “hit an all time low” and in 2019 Mr Tapiki became homeless and in 2020 he lost contact with his family. He writes also that growing up there was a “lot of [d]rug addiction and [a]buse within the family home” and he considers that since he has been in gaol Mr Tapiki has dealt with his trauma, abstained from drug use and become a better person. He confirms that should Mr Tapiki return to the Australian community, he will be residing with him permanently.
Sara Manocher is Mr Tapiki’s sister-in-law and has known Mr Tapiki for eight years. In a reference dated 17 November 2020 she expressed that Mr Tapiki will learn from his recent experiences.
Cameron O’Shannessy is a friend of Mr Tapiki who has known him for three years. He believes that Mr Tapiki has suffered from mental health issues during the time that he has known him, but based on his interactions with Mr Tapiki, Mr O’Shannessy considers that Mr Tapiki has been a high functioning member of the community on occasion. He was surprised that Mr Tapiki had been in gaol and said that Mr Tapiki’s potential deportation is distressing for him and may lead to an exacerbation of Mr Tapiki’s mental health issues. He also notes that Mr Tapiki does not have any family connections in New Zealand.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Subparagraph 8.1(2) of the Direction further provides that decision makers should consider:
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 Mr Tapiki’s conduct to date
Mr Tapiki’s offending
Mr Tapaki’s first recorded offence was shoplifting in May 2018 for which he was fined $200.
On 9 June 2020 Mr Tapiki was found guilty in the Albury Local Court of stalk/intimidate intend fear physical etc harm (personal), destroy or damage property <= $2000 (DV) and common assault (DV) for which he was required to enter into a Conditional Release Order (“CRO”) for 24 months. The offending took place on 27 May 2020 the details are set out in a Police Facts Sheet. The incident occurred at a boarding house Mr Tapiki was living in and the victim was another resident who Mr Tapiki had been drinking alcohol with. The Police Facts Sheet records in part:
About 9.00pm on Wednesday 27 May 2020 the victim and two other person were drinking on the first floor balcony…. [Mr Tapiki] has approached the victim and called him a paedophile and punched him once on the right side of the head on the ear. This has caused the victim to fall over and drop his mobile phone… The victim has got to his feet and [Mr Tapiki] has struck several more times in the head while telling the victim that he would kill him…
On 4 July 2020 Mr Tapiki was in a park and an unknown male approached him to ask for a lighter. Following this Mr Tapiki became angry on account of the stranger making an unknown comment following which:
The unknown male has at this time begun to run from [Mr Tapiki]. [Mr Tapiki] has then begun to run and chase the unknown male… [Mr Tapiki] reached out and grabbed the unknown male, proceeding to pull him to the ground and drag him for about 5 metres. [Mr Tapiki] then leaned over the unknown male, punching him at least five times, lifting him off the ground and pushing him back to the ground, and kicking him a further five times while the male lay on the ground not moving.
When a passer-by attempted to intervene, Mr Tapiki also threatened him with violence causing him to feel intimidated and to fear for his personal safety.
On 11 July 2020 Mr Tapiki appeared before the Parramatta Local Court in relation to the 4 July incident and was released on bail. The conditions included reporting to police once a day and attending mental health treatment. On 14 July 2020 Mr Tapiki failed to report to police as required.
On 26 July 2020 Mr Tapiki demanded a fellow resident of the backpacker’s hostel he was staying at hand over his mobile phone. The victim ignored Mr Tapiki, who then hit the phone out of the victim’s hand. As the victim attempted to re-enter the hostel, Mr Tapiki approached him and hit him across the head with a bottle of alcohol he was holding. As a result of the attack, the victim suffered bruising, swelling and was bleeding from the head.
A NSW criminal history report records that on 28 July 2020 whilst Mr Tapiki was an inmate at Parklea Correctional Centre he assaulted his cellmate. His cellmate was laying on his bed with Mr Tapiki was standing nearby. Mr Tapiki asked the victim what he was in prison for and the victim told Mr Tapaki that he did not want to speak about his charges as they related to his mental health. Mr Tapiki became agitated and called the victim a “paedophile several times” before punching the victim in the face with a clenched fist. Further punches were thrown and a scuffle broke out between Mr Tapiki and the victim. It appears that no charges were laid following the incident and the only record of the incident is the NSW criminal history report. During the hearing Mr Tapiki was taken to the details of the incident as recorded and he confirmed that the account of the incident contained in the criminal history report was accurate.
On 30 September 2020 Mr Tapiki was convicted in the NSW local court of assault occasioning actual bodily harm, stalk/intimidate intend fear physical etc harm (personal), affray, and armed w/i commit indictable offence in relation to the offences which occurred on 4 July and 26 July 2020. He was directed to enter into a community corrections order (“CCO”) for the stalk/intimidate offence and sentenced to an aggregate period of imprisonment of 12 months with a non-parole period of four months for the remaining offences.
In sentencing Mr Tapiki, Magistrate Williams observed that the offending was aggravated by prior CROs. His Honour subsequently lessened the non-parole period imposed to take into account Mr Tapiki’s mental health issues and that he had not previously been imprisoned.
Conclusion as to the nature and seriousness of the Applicant’s offending to date
Based on the materials before the Tribunal, and with due regard to the evidence presented at the hearing, I am satisfied that the nature of Mr Tapiki’s offending is serious.
The Direction specifically states that when considering Mr Tapiki’s offending I should consider the frequency of the offending and whether there is a trend of increasing seriousness. I note also that subparagraph 8.1.1(a)(i) states that crimes of violence are viewed very seriously. In physically attacking members of the public, including with a bottle in one instance, Mr Tapiki’s conduct has been demonstrated to be of significant seriousness.
It is also of concern that Mr Tapaki’s offending began with a conviction for shoplifting in 2018 and escalated to physical violence and the destruction of personal property.
The risk to the Australian community should Mr Tapiki engage in further criminal activity
In considering the risk to the Australian community, subparagraph 8.1.2(2) of the Direction provides that 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 available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved by the time of the decision.
The nature of the harm to individuals or the Australian community should Mr Tapiki commit further offences
In assessing whether Mr Tapiki represents an unacceptable risk to the Australian community, I 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.
The assessment of the nature and harm to individuals or the Australian community were Mr Tapiki to engage in further criminal or other serious conduct is properly informed by the nature of his offending to date and the relevant provisions in the Direction.
Mr Tapiki’s offending to date has been violent and increasingly frequent. I find that the nature of the harm that would be caused if Mr Tapiki were to reoffend is very serious and is likely to involve significant physical, psychological and financial harm to members of the Australian community.
The likelihood of Mr Tapaki engaging in further criminal activity
Mr Tapiki told the Tribunal that he was taken into a psychiatric care for a period of three months in 2017 and that he was diagnosed with schizophrenia. Mr Tapiki gave evidence that he was admitted due to drug related psychosis and medicated with Olanzapine to treat schizophrenia for three years up until 2020. He ceased taking Olanzapine when he stopped using drugs and told the Tribunal that his schizophrenia was “just related to drugs”. Mr Tapiki gave evidence that he stopped using illicit drugs because he ran out of money and having done so he no longer suffered from insomnia and consequently no longer required the Olanzapine.
There is no evidence of admission for psychiatric care in 2017 before the Tribunal, but a letter from a social worker at Chisholm Ross Centre to Goulburn Court states that Mr Tapiki was admitted to Chisholm Ross Centre on 14 March 2018 and was unwell and likely to be unable to attend court on 28 March 2018. No further relevant details are provided about Mr Tapiki’s admission to the Chisholm Ross Centre but I am satisfied that Mr Tapiki was admitted for in-patient psychiatric care for a period as he reports, albeit at a later time than Mr Tapiki recalled.
A sentencing assessment report dated 12 August 2020 notes that Mr Tapiki was receiving Disability Support Pension for diagnosed schizophrenia until he was taken into custody. It is reported that Mr Tapiki was not taking medication to treat schizophrenia at the time of his offending and that “Mr Tapiki presented with severe mental health issues”. The report’s author recommends that he be referred for a mental health assessment, anger management counselling and concludes that his “risk of reoffending appears to be low”. Asked during the hearing if he told the report’s author that he was taking methamphetamine or “ice” at the time of the offending, Mr Tapiki said that he could not be certain. I note that whilst Mr Tapiki conceded at the hearing that he was using illicit drugs at the time of the offending, there is no record of this in the report which states only that Mr Tapiki claimed to have drunk alcohol with the victim prior to the offence and was intoxicated at the time. Consequently I place less weight on the report’s assessment of the risk of Mr Tapiki reoffending.

Consultant Psychiatrist Dr Gerald Chew prepared a psychiatric report dated 29 September 2020 in advance of Mr Tapiki’s 30 September 2020 court appearance. It is recorded that Mr Tapiki was not taking any medication at the time of the assessment but had in the past been treated with Olanzapine. Mr Tapiki reported that he was unable to contact his family and that his mother was sick and his father was her carer.
It is reported by Dr Chew that Mr Tapiki denied any recent drug use but admitted to consuming about “two six packs” of alcohol per day since the age of 18. He also conceded that in the past he had a significant ice problem between the age of 17 until “about three or four years ago.”
Mr Tapiki also told Dr Chew that he had lived in Goulburn for one year about three of four years ago where he had a job as a “geotechnical advisor in earthworks”. He reported to Dr Chew that his childhood had been marked by abuse. Dr Chew also reports that Mr Tapiki had unstable moods and had self-harmed a number of times and tried to hang himself in the past which precipitated the Goulburn Hospital admission. Whilst Mr Tapiki is reported to have been oriented in time, place and person, he did describe experiencing hallucinations which Dr Chew concluded were “pseudo hallucinations”.
Dr Chew concluded that Mr Tapiki’s symptoms were best “encapsulated” by a “Cluster B Personality (Borderline and Antisocial)” and that he has “a mental condition within the meaning of section 32 of the NSW Mental Health Act 2007.”
Whilst in immigration detention Mr Tapiki has regularly seen by the medical service. Health medical records show that Mr Tapiki presented with no mental health issues and it is recorded that he told medical staff that he did not have mental health issues on multiple occasions when asked. When asked about this Mr Tapiki told the Tribunal that he did not tell staff about his prior mental health issues because he thought they were asking if he had mental health issues at that time and he was no longer experiencing mental health issues. At the hearing he confirmed that he refused the counselling that was offered whilst in detention and was aware that mental health services were available to him.
The 12 August NSW Corrective Services report states that Mr Tapiki reported being unmedicated for some time in the community and that since he has been in custody he has been medicated and reported feeling much better. Mr Tapiki also said that if he is released he will try and remain medicated.
A subsequent NSW Corrective Services report from 15 October 2020 states that Mr Tapiki confirmed he has limited contact with his parents due to “unresolved conflict”. He reported being diagnosed with schizophrenia “about 5 years ago” and not compliant with medications before entering custody.
In total the evidence supports the Respondent’s submission that Mr Tapiki’s history of offending has been contributed to by his mental health, drug and alcohol abuse and to a lesser extent, homelessness. This is further supported by the sentencing remarks of Magistrate Williams who noted Dr Chew’s report of referenced above and stated it was clear that Mr Tapiki required assistance.
Mr Tapiki told the Tribunal that he has not required mental health treatment since he has stopped drinking and using drugs, which he maintained at the hearing coincided with his being imprisoned. He claims to have maintained sobriety for the entire period he has been in prison and has continued to remain free of drugs and alcohol since entering immigration detention. He told the Tribunal that he does not currently take medication for his mental health and that he does not need to. So long as he does not take drugs or drink alcohol Mr Tapiki contends that he does not require medication. He claims that his mental health is currently at an “all time high”.
In his report Dr Chew states that Mr Tapiki may have a chronic psychotic illness and speculates that he “may be minimising his substance use”. He recommended ongoing psychological and psychiatric follow up and specifically recommends psychological therapy to address his substance misuse and personality structure. He states that medication such as antidepressants and antipsychotic medications could be considered.
During the hearing it was put to Mr Tapiki that Dr Chew recommended ongoing psychological treatment, to which Mr Tapiki indicated his attendance at Narcotics Anonymous (“NA”) fulfilled this recommendation. He said that he has been to two NA meetings and found it was good to talk to other people who wished to remain sober. He said that he plans to stay sober should he be released back into the community.
It is argued by the Respondent that as Mr Tapiki has rejected offers of treatment and denied having any mental health problems to staff in detention the Tribunal cannot have confidence that he would seek treatment if left to his own devices in the community. It is also noted that in the sentencing assessment report of 12 August 2020 the community corrections officer notes that Mr Tapiki reported at the time of the offence he was not medicated for his diagnosed schizophrenia. The community corrections officer also notes that “Mr Tapiki could not identify how his offending had affected the victim or how he could have done things differently.”
Similarly, I am not satisfied that Mr Tapiki has demonstrated significant remorse or insight into his offending. During the hearing he did not seek to provide an understanding of his offending or demonstrate any capacity or desire to reflect on the impact of the offending on his victims.
If released back into the community Mr Tapiki claims that he will be living with his cousin who he concedes he had not spoken to for a long time. There is also conflicting information about where he would actually reside should he be released back into the community as his brother writes that he will reside with him.
I note that in his written submissions Mr Tapiki acknowledges that he needs to deal with his alcohol and drug use and aggressive behaviour. If released he submits that he will seek psychological help. He also states that he has “complete and utter remorse for the Australian community” for the actual bodily harm offence. I note also that this was Mr Tapiki’s first time in prison and expect it would deter him from reoffending in the future.
It is of concern that Mr Tapiki did not show genuine remorse during the hearing when he was asked about the violent assault on the fellow resident of the hostel which he attributed to both he and the victim being drunk. It is also of concern that he continued to offend whilst on bail and having been issued the CRO.
In considering Mr Tapiki’s offending a discernible pattern of disregard for the law and abusive and threatening conduct emerges.
The absence of evidence that meaningful steps have been taken to address his mental health issues or drug and alcohol abuse after the offending is of significant concern. Whilst it appears that he saw General Practitioner Dr Jeffrey McDonald who on 8 July 2020 referred him to a psychiatrist along with a mental health care plan, there is no evidence that Mr Tapiki commenced treatment.
In terms of medication Mr Tapiki said that he was taking Olanzapine, but indicated that he no longer needed it when he stopped using drugs. Based on his evidence, it would appear that the Olanzapine was mostly used to help counter the stimulating effect of the illicit drugs Mr Tapiki was using and to aid sleep. When he ceased taking drugs, he claims not to have required the medication.
I accept also that the there is a significant risk of Mr Tapiki reoffending on account of the following factors:
·Mr Tapiki appears reluctant to engage with treatment for his mental health condition. The evidence supports a conclusion that he has ceased taking medication for his condition and has refused opportunities whilst in immigration detention for treatment.
·Mr Tapiki contends that he is no longer experiencing symptoms of his mental health condition and that treatment is not required.
·Mr Tapiki told the hearing that the extent of his drug or alcohol treatment was attending two meetings of Narcotics Anonymous whilst in prison.
·The evidence supports a conclusion that Mr Tapiki lacks insight or remorse into his offending.
·Whilst noting that Mr Tapiki’s brother has offered to assist him, Mr Tapiki does not have a substantial support network on which to rely should he be released back into the community. Further, it is apparent that he is currently estranged from his parents.
Conclusion as to the protection of the Australian community
I note that by the time of his first offence Mr Tapiki had been part of the community for many years and his more serious offending occurred over a relatively short period of time in 2020.
However, Mr Tapiki has committed crimes of violence against members of the Australian community on multiple occasions. They have occurred in relatively quick succession. He has been provided opportunities to address the causes of his offending including with mental health treatment, a CCO and parole but continued offend. Whilst on occasion he has acknowledged the need for treatment to prevent further offending, the most recent evidence is that that he is averse to further treatment, meaning the risk to the Australia community is substantial. Consequently, the protection of the Australian community weighs heavily against revoking the mandatory cancellation.
PRIMARY CONSIDERATION B: BEST INTERESTS OF MINOR CHILDREN
Mr Tapiki’s brother recently became a father. Mr Tapaki has not met the child as he was born after Mr Tapiki was imprisoned. However, he contends that he will play a positive parental role in the child’s life.
There is very little evidence in relation to the child before the Tribunal. It is apparent that Mr Tapiki has the support of his brother and it would be expected that he would wish for him to play a role in his child’s life. I accept Mr Tapiki’s intention to have a relationship with the child and play a positive role in the child’s life is genuine.
The Direction requires me to consider the nature and duration of the relationship between the child and Mr Tapiki and less weight should generally be given where the relationship is non-parental or there is no existing relationship, as is the case with Mr Tapiki and his nephew.
Whilst I am satisfied that this factor supports revocation of the mandatory cancellation decision, it is afforded less weight on account of the lack of an existing relationship and the non-parental nature of Mr Tapiki’s relationship with the child.
PRIMARY CONSIDERATION C: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
As there is no evidence that this is a relevant consideration, this primary consideration weighs neutrally.
PRIMARY CONSIDERATION D – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction proceeds to list specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. None of these specifically apply to Mr Tapiki.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, 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. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of the Direction.
With reference to FYBR Senior Member Morris in the matter of NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143 states:
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR.
Observing the norm and the principles outlined in in paragraph 5.2, I am satisfied that the expectations of the Australian community would weigh against revoking the visa cancellation on account of his criminal conduct.
Mr Tapiki arrived in Australia as a child he has lived here from a very young age and for most of his life. Consistent with the principle in subparagraph 5.2.(4) I afford this consideration considerably less weight as Australia may afford a higher level of tolerance of criminal conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
OTHER CONSIDERATIONS
I now turn to other relevant considerations set out in the Direction. Section 9 of the Direction provides that “other considerations” must be considered by the decision-maker where relevant.
Extent of impediments if removed
I am required to consider the extent of any impediments that Mr Tapiki may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards.
At 27 years of age Mr Tapiki is a relatively young man who has lived in Australia almost his entire life. He has visited New Zealand on four occasions since arriving in Australia, which would mean there is a degree of familiarity. Whilst acknowledging that he visited relatives in New Zealand previously, Mr Tapiki maintains that was to visit grandparents who have now passed. He states that he has no relatives or connections in New Zealand.
I accept that Mr Tapiki does not have existing relationships with relatives or friends in New Zealand who would be able to assist with his integration. However, should Mr Tapiki return to New Zealand he would have access to a comparable standard of living and support for his mental health and substance abuse issues.
Whilst Mr Tapiki will not face substantial language or cultural barriers in New Zealand and will have the same access to social, medical and economic support as other citizens, in light of the challenges outlined above, this consideration weighs in favour of revoking the cancellation of Mr Tapiki’s visa.
Strength, nature and duration of ties to Australia
At the hearing Mr Tapiki confirmed that he has not had a relationship with his parents since 2017 and has seen them only once since that time. He states that their conflict was on account of him using drugs. He wishes to look after his mother who has suffered a stroke. In an undated letter he claims to be his mother’s carer. He writes that her stroke was particularly hard on him. He concedes that his father is caring for his mother currently, though submits that as he has had to return to work and so he will be required to assist in her care. Initially he did not go to work but when she got better he returned.
In evidence is a NSW Police Force report which details an incident which occurred on 31 December 2017 involving Mr Tapiki and his father. It is recorded that Mr Tapki had a falling out with his family due to his drug use and attended the family home for Christmas. Mr Tapiki’s father told Mr Tapiki he was not welcome at the family home anymore because he was putting stress on his mother, who was sick. Mr Tapiki arrived at the family home unannounced and was told to leave by his father, who refused to let him into the house on account of being under the influence of drugs.
Mr Tapiki called the police and claimed that his father had assaulted him. Police could not find any signs of injury on Mr Tapiki and following a conversation with Mr Tapiki he was taken to the police station and served with an Apprehended Domestic Violence Order.
Asked about this incident during the hearing Mr Tapiki stated that he was the victim of an assault on the night in question and the victim. Irrespective of the specific details it is apparent that Mr Tapiki is estranged from his parents and I do not accept that he has had or would be expected to have an active role in caring for his mother in these circumstances.
I accept the Respondent’s contention that Mr Tapiki has limited social and family support in Australia as demonstrated by the dearth of supporting statements and Mr Tapiki’s own evidence. NSW Department of Corrective Services case notes record that he had not informed family or friends of his imprisonment and was content not to do so.
Upon leaving school Mr Tapiki worked as a panel-beater and then as a geotech engineer and supervisor between 2016 and 2019. Following this he was in receipt of Centrelink benefits for his mental health condition.
I acknowledge that Mr Tapiki’s brother has offered to support him should he be released back into the community and I accept that offer as genuine.
Overall, I give this consideration moderate weight in favour of revocation.
CONCLUSION
In weighing up the relevant considerations, I must consider the weight that is appropriate to place on each. Mr Tapiki’s offending in aggregate is serious.
The protection of the Australian community weighs heavily against revoking the mandatory cancellation decision.
The best interests of Mr Tapiki’s nephew weigh marginally in favour of revoking the cancellation decision. The primary consideration of the expectations of the Australian community weigh against revocation, but significantly less than it might otherwise given Mr Tapiki has spent almost his entire life in Australia.
The extent of impediments if removed support revoking the mandatory cancellation, as does the extent, nature and duration of ties. It is an unfortunate reality that Mr Tapiki has become estranged from his parents and based on the evidence it would appear that his mental illness and drug use has left him isolated and ostracised, with the notable exception of his twin brother. I place considerable weight on the relationship he has with Kalton Tapiki and the importance of that relationship. I find this consideration weighs in favour of revoking the mandatory cancellation decision.
The balance of factors weighs against revoking the mandatory cancellation decision. The factors in favour of revocation, notably the length of time Mr Tapiki has been in Australia and the young age at which he arrived, are outweighed by the considerations against revocation, particularly the protection of the Australian community.
DECISION
In weighing all the evidence and considerations, I find that the correct and preferable decision is to affirm the reviewable decision made on 15 February 2021 not to revoke the mandatory cancellation of Mr Tapiki’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 93 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..............................[SGD]..........................................

Associate
Dated: 11 May 2021

Date(s) of hearing: 19 and 20 April 2021

Applicant: Self-represented

Solicitor for the Respondent: Mr C Burke, Sparke Helmore Lawyers

[2021] AATA 1228

11 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	19 and 20 April 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mr C Burke, Sparke Helmore Lawyers