Te Ohaere and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 550

Te Ohaere and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 550 (28 March 2024)

Division:GENERAL DIVISION

File Number(s):      2023/4258

Re:Uriah Te Ohaere

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:  28 March 2024

Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 15 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.

................[Sgnd].........................

Senior Member George

CATCHWORDS

MIGRATION – cancellation of applicant’s Class TY Subclass 444 Special Category (Temporary) visa – where applicant does not pass the character test – offending serious – repeat offending – consideration of ministerial direction no.99 – decision under review set-aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCAFC 185

FYBR v Minister for Home Affairs [2019] FCA 500

Pavey and Minister for Home Affairs [2019] AATA 4198

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member George

28 March 2024

1. Mr Uriah Te Ohaere is a New Zealand citizen. He was born in February 1988. He has substantially resided in Australian since July 2005.

2. Mr Te Ohaere has an extensive criminal record. Notably, on 23 June 2022, Mr Te Ohaere was convicted of Armed Robbery Commit Indictable Offence Whilst on Bail in the County Court of Victoria at Melbourne.[1] He was sentenced to an aggregate term of 12 months imprisonment. Mr Te Ohaere’s visa was then mandatorily cancelled on 22 July 2022 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[2]

   [1] Exhibit R2, G-Documents, G6, National Criminal History Check.

   [2] Exhibit R2, G-Documents, G24, Letter from Department, pages 132-133.

3. On 3 August 2022, Mr Te Ohaere sought the revocation of the cancellation decision.[3] On 15 June 2023, considering the now superseded Direction 90, a delegate was not satisfied that Mr Te Ohaere passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[4] This is the reviewable decision. Mr Te Ohaere lodged an application for review of the reviewable decision with the Tribunal on 16 June 2023.[5]

   [3] Exhibit R2, G-Documents, G12, Email of Applicant; G13, Personal Circumstances Form.

   [4] Exhibit R2, G-Documents, G3, Notification of Decision Not to Revoke Visa Cancellation, pages 10-11.

   [5] Exhibit R2, G-Documents, G2, Application for Review of Decision, pages 4-9.

4. It is not in contest that Mr Te Ohaere has a substantial criminal record and therefore, does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Act. Accordingly, the central issue in this matter is whether there is another reason why the cancellation should not be revoked.

5. For the following reasons, considering Direction 99, the Tribunal has decided to set-aside the Reviewable Decision and substitute a decision to revoke the mandatory cancellation of Mr Te Ohaere’s visa.

   BACKGROUND AND OFFENDING

6. Mr Te Ohaere grew up in multiple homes as a child in New Zealand. These were an unstable environment and he suffered from physical, mental and sexual abuse.

7. In Exhibit A1, Mr Te Ohaere has set out his background. As he grew up, Mr Te Ohaere struggled with addiction. In 2013, Mr Te Ohaere started to smoke methamphetamine. Mr Te Ohaere was addicted to methamphetamine until 2021. He says, and the Tribunal accepts, that he has not abused drugs in the past three years.

8. Mr Te Ohaere’s father, mother, brothers, sisters, nieces, nephews, aunts and uncles all reside in Australia. His mother, Ms S Te Ohaere gave evidence that she has a permanent right to remain in Australia through a special category visa. It is inferred from her evidence that Mr Te Ohaere’s father is also on the same visa, although this inference does not extend to Mr Te Ohaere’s wider family.

9. Mr Te Ohaere attended school in Australia. He worked as a manual labourer, a pick and packer, and a forklift driver. He submits that he has “been working in the community since 2005,”[6] which the Tribunal broadly accepts.

   [6] Exhibit R2, G-Documents, G13, Personal Circumstances form, page 114.

10. Mr Te Ohaere’s cousin, Ms A Holloway, provided a statement that gave insight into his past, in particular his drug use. Ms Holloway said that the drugs changed Mr Te Ohaere so much that she could not recognise him when he was taking drugs and that he mixed with the wrong people. Since Mr Te Ohaere has stopped taking drugs, however, he is hard working and deeply family orientated. Ms Holloway says that Mr Te Ohaere realises how many years of his life he wasted on drugs and is trying to be a better person now. This is consistent with Mr Te Ohaere’s evidence, which did not shy away from the consequences of his drug use, and it is accepted by the Tribunal.

11. The material before the Tribunal indicates that Mr Te Ohaere has experienced cognitive issues, although the Tribunal observes no impairment was apparent during proceedings. On the contrary, Mr Te Ohaere was a thoughtful, reflective, controlled, and able advocate at times. In his personal circumstances form, he wrote that he suffers from depression and post-traumatic stress disorder and there is psychological evidence to support this.

12. Mr Te Ohaere has returned to New Zealand. He did not wish to languish in immigration detention in Australia. Since returning to New Zealand, Mr Te Ohaere has obtained full time work, resides in rental accommodation, attends church, and has maintained friends. Mr Te Ohaere has removed himself from drugs and criminality whilst in New Zealand. Nevertheless, the Tribunal accepts that he is depressed due to being separated from his family. In the hearing he described this depressed feeling as a “hell”.

13. In a letter to the Tribunal, Mr Te Ohaere concedes he has had drug addictions and attributed his addictions to the trauma he suffered as a child.[7] He states that once he started smoking methamphetamine, he spiralled out of control and ended up in gaol.[8] Certainly, substance abuse is central to Mr Te Ohaere’s criminal offending.

    [7] Exhibit A1, Applicant’s Letter to the Tribunal.

    [8] Exhibit A1, Applicant’s Letter to the Tribunal.

14. Mr Te Ohaere’s criminal history in Australia is extensive, but may be summarised as follows:

    (a)In December 2010, he was convicted in the Sunshine Magistrates Court of Learner driver veh wo exper driver, Drive without “L” plates displayed, Use unregistered motor vehicle-highway and Driv veh-nr plate not affix/displ as req;

    (b)In April 2016, he was convicted in the Melbourne County Court of Theft-from shop (shopsteal) (10 charges), Theft (3 charges), Handle/receive/dispose of stolen goods (2 charges), Commit indictable offence whilst on bail (7 charges), Theft from motor vehicle, Retention of stolen goods and Drive whilst authorisation suspended (2 charges);

    (c)In September 2016, he was convicted in the Melbourne County Court of Dang/neg driving while pursued by police, Armed robbery, Theft (2 charges), Theft, Unlawful assault and Commit indictable offence whilst on bail;

    (d)In August 2018, he was convicted in the Werribee Magistrates Court of Theft of a motor vehicle, Theft from shop (shopsteal) and Fail to answer bail;

    (e)In February 2020, he was convicted in the Melbourne County Court of Contravene community correction order (3 charges);

    (f)In July 2020, he was convicted in the Sunshine Magistrates Court of Fail to answer bail, Theft from shop (shopsteal) (12 charges), Commit indictable offence whilst on bail, Theft (3 charges), Handle/receive/dispose of stolen goods, Drive in a manger dangerous, Unlicenced driving (7 charges), Dangerous driving while pursued by police, Contra-fam violence interm interven ord and Possess methylamphetamine;

    (g)In August 2021, he was convicted in the Melbourne County Court of Contravene community correction order (2 charges);

    (h)In September 2021, he was convicted in the Sunshine Magistrates Court of Attempt to commit indictable offence and Theft of a motor vehicle drive whilst disqualified; and

    (i)In June 2022, he was convicted in the Melbourne County Court of Armed robbery and Commit indictable offence whilst on bail.[9]

    [9] Exhibit R2, G-Documents, G6, National Criminal History Check.

15. For his conviction of Armed robbery and Commit indictable offence whilst on bail, Mr Te Ohaere received a 12 month aggregate sentence. The transcript of the proceedings dated 23 June 2022 described the offending as follows:

    “Very briefly stated, on 16 January of 2021 you arranged for a number of items to be delivered from a pizza shop to premises in Williams Landing. The people at that address had not ordered the pizza. As the delivery man was leaving the address you bailed him up with a knife and took the items that had been ordered by you to be delivered to that address.

    You have admitted a prior criminal history which is extensive and commences in 2010. Significantly, you have prior convictions for theft and dishonesty. You have a prior conviction in 2016 in this court for armed robbery and theft where you were sentenced to 119 days which was the period that you had spent in custody, plus a community corrections order. You then continued offending in a similar way by stealing motor vehicles, stealing from shops, being pursued by the police and using methylamphetamine, which was one of your problems. Ultimately you obviously breached the community corrections order imposed in this court and received a period of imprisonment for subsequent offences and that breach.

    You have had a history of non-compliance with community corrections orders. I was minded to impose a combination sentence but I am of the view that your prospects of completing any community corrections order are slim and I would be perhaps setting you up to failure if I were to impose a combination order.

    The armed robbery you committed was a low-level example of a serious offence. Armed robberies come in all shapes and sizes. Yours is a bottom level offence. You stole $105 worth of pizzas and food at knifepoint. Nonetheless, with your prior history there is obviously nothing other than a term of imprisonment appropriate and, for the reasons I discussed with your counsel before your plea, I am of the view that a straight term of imprisonment to reflect the seriousness of that offending is appropriate.”[10]

    [Emphasis added]

    [10] Exhibit R2, G-Documents, G8, Transcript of Proceedings 23 June 2022, pages 46-50.

    THE CHARACTER TEST AND DIRECTION 99

16. The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that Mr Te Ohaere has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more. Mr Te Ohaere does not pass the character test.

17. To revoke the mandatory cancellation of Mr Te Ohaere’s visa under s 501CA(4)(b) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 99, to revoke the cancellation.

18. Direction 99 sets out Primary Considerations and Other Considerations. The Primary Considerations should generally be given more weight than the Other Considerations, whilst one or more Primary Considerations may outweigh other Primary Considerations. Regard to these Primary Considerations and Other Considerations is made under their respective headings below.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

    The Nature and Seriousness of the Applicant’s Conduct to Date

19. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.

20. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

21. Mr Te Ohaere has been convicted of threatening staff at a store and threatening a delivery driver with a knife. The Tribunal views this conduct as very serious.

22. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)   causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (i)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

23. During one of his offences, Mr Te Ohaere drove his vehicle at a fast pace towards an off-duty member of the police to the point where he had to jump out of the way.[11] The Tribunal views this conduct as serious.

    [11] Exhibit R2, G-Documents, G30, Transcript of Proceedings 29 July 2020, page 188.

24. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[12]

    [12] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].

25. Mr Te Ohaere has been sentenced to terms of imprisonment, which reflects the objective seriousness of his offending. When convicting Mr Te Ohaere on 23 June 2022, the Court remarked, “I am of the view that a straight term of imprisonment to reflect the seriousness of that offending is appropriate.”

26. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

27. Mr Te Ohaere’s offending in Australia began in 2010. Between 11 April 2016 and 23 June 2022, the Applicant frequently offended and the offending increased with seriousness.

28. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

29. Mr Te Ohaere has persistently breached the peace through his criminal offending and other serious conduct. The cumulative effects of these breaches cannot be objectively quantified, nevertheless they are noted by the Tribunal.

30. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

31. Mr Te Ohaere provided false or misleading information to the Department by not disclosing his criminal history on incoming passenger cards. Mr Te Ohaere submits that he was unaware he had to disclose his New Zealand criminal history as it occurred when he was a minor. With respect to his Australian criminal history, Mr Te Ohaere submits that he did not realise he had to disclose his Australian convictions when entering Australia.

32. The Respondent submits, and the Tribunal accepts, that these explanations are uncompelling. In his oral evidence, Mr Te Ohaere conceded that he was not wholly honest about his convictions but that he was also not deliberately dishonest.

33. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.

34. There is no evidence that Mr Te Ohaere has been formally warned about the consequences of future offending. Accordingly, the Tribunal does not regard this consideration to be relevant.

35. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

36. Mr Te Ohaere has been convicted of dishonesty offences in New Zealand when he was a minor.

37. The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

38. Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

39. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

40. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    oinformation and evidence on the risk of the non-citizen re-offending; and

    oevidence 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).

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. Mr Te Ohaere attributes his offending to his prolonged drug addiction with methamphetamine. There is great strength to this attribution, and it demonstrates insight.

2. In his oral evidence, Mr Te Ohaere said he voluntary returned to New Zealand as he had seen people spend years in immigration detention and subsequently deteriorate mentally.

3. While in New Zealand, Mr Te Ohaere has obtained full time work with his local Council and rents an apartment by himself. He considers himself a Jehovah’s Witness and attends church. He submits that he has stayed drug free and has not offended since his return to New Zealand.

4. Mr Te Ohaere says that while he has made good progress in New Zealand, he is not happy with his life there and wants to be surrounded by his family in Australia.

5. When under cross-examination, Mr Te Ohaere accepted his criminal history and convictions in Australia. He attributed his offending to being on drugs at the time and conceded he did not have regard to the safety of the community. This is particularly so when he offended by driving dangerously while being pursued by police.

6. The Respondent has submitted that if Mr Te Ohaere were to return to the family home, he may revert to his previous addictions. The Respondent has relied upon the historic marijuana use in the family home and the long-term conflict between Mr Te Ohaere and his father in support of this submission. There is strength to this submission, however it is moderated by cessation of drug use in the family home as given in evidence by Ms S Te Ohaere. It is also material that Mr Te Ohaere’s parents never condoned methamphetamine use. Also, Ms S Te Ohaere’s evidence is her husband and Mr Te Ohaere would not fight anymore. The Tribunal furthermore regards Ms S Te Ohaere as a strongly prosocial influence on her son.

7. The Tribunal notes the Court and psychological evidence before it that go to the risks of reoffending. Broadly, these documents indicate that Mr Te Ohaere poses a moderate risk of reoffending.[13] The Tribunal is satisfied that if Mr Te Ohaere resumes methamphetamine usage that he will, more likely than not, reoffend.

   [13] See in particular Exhibit R4, Respondent’s Further Supplementary Documents, Confidential Psychological report of Laura Fleming, S17, page 150.

8. It is material that Mr Te Ohaere has lived a drug and crime free life in New Zealand since returning from Australia. This is very much in his favour.

9. Cumulatively, the Tribunal is satisfied that Mr Te Ohaere’s risk of reoffending is acceptable.

   Conclusion: Primary Consideration 1

10. Primary Consideration 1 weighs heavily against the revocation of the cancellation of the Mr Te Ohaere’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

11. “Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful.

12. Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).

13. Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.

14. Mr Te Ohaere was the subject of a Family Violence Interim Order, which he contravened by attending prohibited premises.[14] While this conduct constitutes family violence, its objective seriousness is minimal. There is also no evidence of repeated family violence perpetrated by Mr Te Ohaere.

    [14] Exhibit R4, Respondent’s Further Supplementary Documents, Charge Sheet and Summons, S8, page 13.

15. Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.

16. There is no objective evidence before the Tribunal of repeated acts of family violence. 

17. Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.

18. In his oral evidence, Mr Te Ohaere was asked if he recalled the circumstances that led to this Interim Order. He said he was drinking at the time and had become angry at his father. He said he had internal hate for his father due to the abuse he suffered from him as a child and that it would come out when he would drink. He submits that he now has a good relationship with his father as his father is older now and more “mellow”.

19. Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.

20. There is no evidence before the Tribunal that Mr Te Ohaere has re-offended of this type since being formally warned about the consequences of further acts of family violence.

21. Considering the sub-paragraphs in their totality, they weigh slightly against revocation of the cancellation of Mr Te Ohaere’s visa.

    Conclusion: Primary Consideration 2

22. Primary Consideration 2 weighs slightly against the revocation of the cancellation of Mr Te Ohaere’s visa.

    PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

23. The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[15] The Direction requires that more weight be given to the non-citizen’s ties to his or her child and/or children who meet the same qualifiers.[16]

    [15] Direction 99, paragraph 8.3(1).

    [16] Direction 99, paragraph 8.3(2).

24. Paragraph 8.3(3) lacks clarity and seems to be a statement without any direction to the decision-maker:

    8.3(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

25. Paragraph 8.3(4) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. When considering any other ties, the Tribunal must have regard to the length of time the non-citizen has resided in the Australian Community in accordance with the following weightings:

    i. Considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    ii. More weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    iii. Less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.

26. Mr Te Ohaere’s immediate family reside in Australia. He maintains weekly contact with his mother and talks semi-regularly with his siblings. He has eight nieces and nephews who are all minors and has limited contact with them. It is unnecessary to name these children on the public record, but it is sufficient that Mr Te Ohaere was able to name the children and describe his relationship with them.

27. Mr Te Ohaere is very close to his mother Ms S Te Ohaere. In a written statement before the Tribunal, his mother said she would be devastated to know that she might never see her son again. Ms S Te Ohaere has heart issues and said the thought of Mr Te Ohaere having to live in New Zealand has put a strain on her health. It has also affected her mental health.[17]

    [17] Exhibit R2, G-Documents, G17, Statement of S Te Ohaere, page 122.

28. In her oral evidence during these proceedings, Ms S Te Ohaere stressed that she hoped Mr Te Ohaere would be able to return to Australia and reside with her in the family home. She gave evidence that both her and Mr Te Ohaere’s father are not in good health.

29. Ms S Te Ohaere made appropriate concessions about her historic marijuana use, and that of her husband. Despite this previous marijuana use, Ms S Te Ohaere’s evidence was that the family home was now drug free and that in any event she was never tolerant of methamphetamine. Ms S Te Ohaere also gave evidence that she did not think that conflict would arise between Mr Te Ohaere and his father. Both men are now older and, the inference flows, are more circumspect.

30. The Tribunal accepts Ms S Te Ohaere’s evidence and, indeed, puts considerable weight upon it.

    Conclusion: Primary Consideration 3

31. Primary Consideration 3 weighs very heavily in favour of revocation of the cancellation of Mr Te Ohaere’s visa.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

32. Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.

33. Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.

34. Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

35. Mr Te Ohaere does not have children. He has eight nieces and nephews who reside in Australia. When communicating with his siblings, he will say hello to his nieces and nephews. His communication with them is limited as most of them are very young.  

36. Mr Te Ohaere’s sister-in-law “NM” provided a statement in support of Mr Te Ohaere, some of her statement reads as follows:

    “When I first met [Mr Te Ohaere], he was so caring towards our family, providing for the family and was always there to help anyone out. He adores his nieces and nephews he used to take them to school and picked them up to give my sister-in-law a break. If he was deported [Child] would not have the chance to bond with her uncle like the other kids as she has not met him and would not have the chance to bond with her uncle like the other kids as she has not met him and would not know who he is and its so sad as all the other kids miss him so deeply.”[18]

    [18] Exhibit R2, G-Documents, G20, Statement of “NM”, page 125.

37. Mr Te Ohaere’s sister “CK” provided a statement detailing the role Mr Te Ohaere played in her children’s lives:

    “…But most of all he was an awesome uncle to his nephews he would walk them to and from school, buy them school lunches, help them with homework, take them out when I needed a break. They absolutely love their uncle and he loved them, they would be heart broken and lost if he were to leave them again.”[19]

    [19] Exhibit R2, G-Documents, G16, Statement of “CK”, pages 120-121.

38. Mr Te Ohaere’s evidence indicates that he is as close to his nieces and nephews as can reasonably be expected of a person in his situation. He rightly also conceded during his oral evidence that any further offending by him would negatively impact on their lives. However, the Tribunal is also satisfied that the best interests of the children would be served by greater contact with their uncle.

    Conclusion: Primary Consideration 4

39. Primary Consideration 4 weighs moderately in favour of the revocation of the cancellation of Mr Te Ohaere’s visa.

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

40. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.

41. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

42. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

43. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

44. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[20]

    [20] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

45. Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

46. Accordingly, in assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the following matters:

    (a)Mr Te Ohaere contravened a Family Violence Interim Order.

    (b)Mr Te Ohaere has repeatedly offended in Australia.

    (c)Some of Mr Te Ohaere’s offending is objectively very serious, which is also indicated by his terms of imprisonment.

    Conclusion: Primary Consideration 5

47. On balance, Primary Consideration 5 weighs moderately against the cancellation of Mr Te Ohaere’s visa.

    OTHER CONSIDERATIONS

48. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.

    (a) Non-citizens covered by a protection finding

49. There is no evidence before the Tribunal that Mr Te Ohaere is covered by a protection finding. Accordingly, this consideration is not relevant.

    (b) Extent of impediments if removed

50. It is uncontroversial that New Zealand is a country similar to Australia and offers many of the same welfare state supports. Exhibit R3 indicates that New Zealand has a reasonable primary health care system that includes mental health support. This is particularly relevant to any treatment of Mr Te Ohaere’s mental health.

51. Mr Te Ohaere voluntarily returned to New Zealand. It is clear from his oral evidence that he is doing well in New Zealand. The Tribunal places weight on the facts that he has obtained work, has stable accommodation, attends church, and has maintained friends.

52. There is no evidence before the Tribunal that Mr Te Ohaere has suffered any impediments since returning to New Zealand. On balance, this consideration weighs neutrally.

    (c) Impact on victims

53. There is no evidence of any impact of the Tribunal’s decision on Mr Te Ohaere’s victims. Accordingly, this consideration is not relevant.

    (d) Impact on Australian business interests

54. There is no evidence of any impact on Australian business interests if Mr Te Ohaere is not allowed to enter or remain in Australia. Accordingly, this consideration is not relevant.

    CONCLUSION

55. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. The Applicant clearly does not pass the character test.

56. In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:

    (a)Primary Consideration 1 weighs heavily against the revocation of the cancellation of Mr Te Ohaere’s visa.

    (b)Primary Consideration 2 weighs slightly against the revocation of the cancellation of Mr Te Ohaere’s visa.

    (c)Primary Consideration 3 weighs very heavily in favour of the revocation of the cancellation of Mr Te Ohaere’s visa.

    (d)Primary Consideration 4 weighs moderately in favour of the revocation of the cancellation of Mr Te Ohaere’s visa.

    (e)Primary Consideration 5 weighs moderately against the revocation of the cancellation of Mr Te Ohaere’s visa.

    (f)No weight is attributable to the Other Considerations.

57. Considering all the evidence before it, the Tribunal places particular weight on Primary Consideration 3. Noting the favourable impact of considering Direction 99 as compared to Direction 90, the Tribunal is satisfied that the correct and preferable course is to set-aside the Reviewable Decision and substitute a decision to revoke the mandatory cancellation of Mr Te Ohaere’s visa.

    DECSION

58. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 15 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[Sgnd]...................................

Associate

Date of Decision:	28 March 2024
Date of Hearing:	27 February 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Ms Nicola Alroe Minter Ellison

ANNEXURE A – EXHIBIT REGISTER

99.     EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
R1	Respondent’s Statement of Facts, Issues and Contentions	R	25/9/2023	25/9/2023	27/2/2024
A1	Letter of the Applicant	A	Undated	30/8/2023
R2	G-Documents	R	N/A	28/7/2023
R3	Respondent’s Supplementary Documents	R	N/A	25/9/2023
R4	Respondent’s Further Supplementary Documents	R	N/A	30/10/2023
A2	Statement of A Holloway (Undated)	A	Undated	30/8/2023