Tekorona and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1873
•24 June 2021
Tekorona and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1873 (24 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2178
Re:Tekorona Ariki Kea Te Tu Tekorona
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:24 June 2021
Place:Sydney
The correct or preferable decision is to set aside the reviewable decision and substitute it with a decision to revoke the cancellation of the Applicant’s Special Category (Subclass 444) visa.
............................[SGD]............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – ties to Australia – impediments to removal – impact on victims – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 500, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
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
The Hon. John Pascoe AC CVO, Deputy President
INTRODUCTION
This is an application for review by the Tribunal, made pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act), of a decision made by a delegate of the Respondent dated 31 March 2021. By that decision, the delegate decided not to revoke, pursuant to s 501CA(4) of the Act, the cancellation of the Applicant’s Special Category (Subclass 444) visa.
The Applicant was notified via his representative of the non-revocation decision on 1 April 2021. On 9 April 2021, the Applicant applied to the Tribunal for review of the delegate’s decision.
The Applicant is a 26-year old citizen of New Zealand who first arrived in Australia on 27 December 1997 (at the age of 3) as the holder of a Special Category (Subclass 444) visa. The Applicant’s first visit was of approximately four weeks’ duration, and he made four subsequent visits of a similar duration between 2000 and 2007.
The Applicant arrived again in Australia on 13 January 2009 (at the age of 14) as the holder of a Special Category (Subclass 444) visa and, apart from two brief departures, resided in Australia until 9 February 2013.
The Applicant next arrived in Australia on 8 March 2014 (at the age of 19) as the holder of a Special Category (Subclass 444) visa and, apart from two brief departures, has remained in Australia since then.
The Applicant was born in the Cook Islands and is accordingly a New Zealand citizen. In a submission dated 12 June 2020, it was claimed that the Applicant had an unstable upbringing during which he lived with different relatives in the Cook Islands, mainland New Zealand and Australia for varying lengths of time. It was claimed the Applicant’s father committed suicide when the Applicant was six months old.
The Applicant has two children, both from a relationship with Ms Kiana Lucy Matapo: Tyson, born in July 2015 and Elias, born in October 2016.
On 1 May 2020, the Applicant was sentenced by the NSW District Court for the following four offences:
(a)Aggravated break & enter and commit serious indictable offence, in contravention of the Crimes Act 1900 (NSW) s 112(2);
(b)Aggravated kidnapping in contravention of the Crimes Act 1900 (NSW) s 86(2)(b);
(c)Intentionally choke etc. person without consent, in contravention of the Crimes Act 1900 (NSW) s 37(1A); and
(d)Destroy or damage property, in contravention of the Crimes Act 1900 (NSW) s 195(1).
The Applicant pleaded guilty to and was convicted of the break and enter and kidnapping offences. The Applicant admitted guilt in relation to the other two offences, which were taken into account under a “Form 1 procedure” pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The four offences arose from a series of events which took place on 16 December 2018 in the context of a dispute between the Applicant, Ms Matapo, and Ms Matapo’s then boyfriend, Mr Eric Newbigging. The agreed facts of these events are described in the sentencing remarks of District Court Judge Girdham dated 1 May 2020. In summary:
(a)The Applicant and Ms Matapo were in a relationship for approximately five years, during which time they had two children together. The relationship ended in early 2018, from which time the Applicant and Ms Matapo co-parented via an informal arrangement whereby they each took custody of the children on alternating weeks.
(b)On Saturday 15 December 2018, the Applicant had custody of the children and had expected Ms Matapo to collect them as per the informal arrangement. The Applicant sent Ms Matapo text messages that evening, swearing at her and telling her she was supposed to have taken the children.
(c)On the morning of Sunday 16 December 2018, the Applicant attempted to call Ms Matapo about 34 times in order to arrange dropping off the children but received no answer. He also sent her text messages which stated that she would be looking after the children and that he “[did not care]”.
(d)In the afternoon of 16 December 2018, the Applicant drove with the children to Ms Matapo’s house, arriving at 1:20pm. He left the children in the car, approached the house and knocked on a door, but there was no answer. He then forced entry via a locked laundry door.
(e)The Applicant went upstairs and found Ms Matapo and Mr Newbigging in bed together. He was aggressive and threatening towards them. He and Mr Newbigging began wrestling. Mr Newbigging momentarily pinned the Applicant down, but the Applicant swung at Mr Newbigging with a “clothesline”, was able to stand up, and went downstairs where he picked up kitchen knives. He went back upstairs and threatened Mr Newbigging with the intention of intimidating Mr Newbigging out of the house. The Applicant threatened Mr Newbigging, who left the house.
(f)The Applicant then entered a bathroom where Ms Matapo was situated, swore at her, “momentarily strangled [her] with one hand”, and “struck her”.
(g)The Applicant next went outside where he unsuccessfully looked for Mr Newbigging, then came back to Ms Matapo upstairs, pushed her towards the stairs, and told her to drive him home. On the staircase, the Applicant asked Ms Matapo for her phone and again “momentarily strangled” Ms Matapo while still holding the kitchen knives. Ms Matapo said she did not have her phone on her.
(h)Once they were downstairs, the Applicant threw the knives into the kitchen and dragged Ms Matapo into his car, where the children were still sitting. As the Applicant began to drive, he “struck [Ms Matapo] twice with a backhand and he chipped her front tooth”.
(i)While the car was stopped at traffic lights, Ms Matapo exited the car and sought assistance from strangers in a car stopped behind the Applicant’s, who let Ms Matapo into their car and drove her back to her home. When they arrived, she observed that the Applicant’s car was in the driveway, the children were still in the car, and the front door of the house was open. She remained in the strangers’ car, directed them to keep driving, and phoned emergency services.
(j)While Ms Matapo and the strangers were stopped at a junction, the Applicant drove up next to the strangers’ car, got out of his car, removed the two children from his car, placed them on the side of the road, got back in his car, and drove away.
(k)The strangers drove Ms Matapo and the children back to her home and then departed. Ms Matapo took the children inside and waited for the police to arrive. Before the police arrived, the Applicant and a cousin of the Applicant entered the house. Ms Matapo attempted to leave but the Applicant pushed her back into the house. The cousin told the Applicant to leave her alone, and she went outside with the children, accompanied by the cousin.
(l)The Applicant went through the house in search of Mr Newbigging and put holes in several walls, broke a window, broke a pedestal fan, and damaged a rubbish bin. He exited the house and demanded Ms Matapo give him her phone. The Applicant’s cousin told him to get into his car, which he did. The Applicant drove his car into Ms Matapo’s garage door and damaged it, with the intention of having Ms Matapo evicted from her house.
(m)The Applicant later sent text messages to Ms Matapo in which he swore at her, told her the day’s events were her fault, and told her she would never see or hear from the Applicant again.
(n)Ms Matapo was treated at Liverpool Hospital. Her injuries were described as a chipped front tooth and bruising over the right orbit and left frontal bone.
The Applicant was sentenced on 1 May 2020 to an aggregate term of imprisonment for three years and seven months with a non-parole period of two years and one month, commencing on 16 December 2018.
On 20 May 2020, the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act. The notification letter, which was delivered to the Applicant by hand, advised that the visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months in respect of the offences for which he was convicted on 1 May 2020, and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. The letter also invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of the date the letter was handed to him.
On 16 June 2020, within the prescribed period, the Applicant requested revocation of the cancellation of his visa and made representations about revoking the decision to cancel the visa.
In support of the Applicant’s request, his representative provided a submission on 16 June 2020, which attached:
(a)a report dated 8 April 2020 by Ms Ann-Marie De Santa Brigida, a counselling psychologist;
(b)a reference letter from the Applicant’s mother dated 16 April 2020;
(c)a reference letter from the Applicant’s aunt, Marie Aitoa, dated 17 April 2020;
(d)a reference letter from the Applicant’s cousin, Urarihi’ Dawn Aitoa, dated 17 April 2020; and
(e)a letter dated 11 June 2020 from the Applicant’s uncle, John Aitoa, offering the Applicant employment in the uncle’s construction company.
On 15 December 2020, the Department invited the Applicant to comment on information contained in the sentencing remarks of District Court Judge Girdham dated 1 May 2020.
On 16 December 2020, the Applicant’s representative provided a further submission which was substantially identical to the one provided on 16 June 2020.
On 31 March 2021, a delegate of the Minister decided, under s 501CA(4), not to revoke the cancellation decision.
THE LAW
As the parties agree that the Applicant does not pass the character test set out in s 501(6) of the Act given the length of his sentence, the sole issue before the Tribunal is whether, having regard to Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), there is ‘another reason’ why the mandatory cancellation decision should be revoked.
There are a number of relevant principles contained in Clause 5.2 of Direction 90 that I have considered as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia 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.
5Decision-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 type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Direction 90 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. 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 properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.
The primary considerations in Direction 90 are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence committed by the non-citizen;
(c)best interests of minor children in Australia affected by the decision; and
(d)expectations of the Australian Community.
Direction 90 also sets out other considerations that must be taken into account, 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.
THE ISSUES
It is agreed between the parties that the Applicant does not pass the character test as he has been sentenced to a term of imprisonment for an aggregate of three years and seven months.
The issue for the Tribunal’s determination is therefore whether under s 501CA(4)(b)(ii) of the Act, there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision pursuant to s 501CA(4).
THE EVIDENCE
The Applicant
The Applicant agreed that he had been convicted on four counts for breaking and entering, intentional choke, kidnapping, and destroying and damaging property. He outlined the circumstances in which the offences occurred which may briefly be described as follows.
On the weekend of 15 and 16 December 2018, he had arranged for Kiana Matapo to mind the children, as he wanted to buy presents for them to be a surprise at Christmas and did not want to take the children with him.
The Applicant said he called Ms Matapo a number of times to see if she was home, but he got no response. She was not answering her phone and he went into her house to see if she was at home, because he could see the curtains were moving in an upstairs room.
The Applicant went to the back of Ms Matapo’s house where he knew a key was normally kept, but the key was not there. As a result, he tried the laundry door which he said had not been properly locked and he went inside the house.
Once inside, the Applicant called out, but receiving no response, proceeded to walk up the stairs. Having called Ms Matapo’s number and heard the phone ring, he subsequently found her in bed with another man who was known to him. The man, Eric Newbigging, was a friend of both the Applicant’s and Ms Matapo‘s families, and was a cousin of the Applicant. The Applicant said he began to berate Ms Matapo, at which point Mr Newbigging intervened and started pushing him, which led to a fight and punches being thrown.
The Applicant said he was emotionally hurt and angry. He said that because Mr Newbigging was bigger than him, he ran downstairs where he got a knife, after Mr Newbigging had tried to whip him with the cord from an iron which was in the bedroom.
The Applicant admitted to slapping Ms Matapo and abusing her verbally. The Applicant said that at the time he was not in a full-time relationship with Ms Matapo, but that they spent time together, which included him staying at her house from time to time. The Applicant thought that Ms Matapo still wanted, like him, to repair their relationship and said he did not know why Ms Matapo was ‘‘leading him on”.
When questioned as to whether he thought he had some justification for assaulting Ms Matapo, the Applicant agreed that he did not have any justification for violence but reiterated that he was hurt and angry that Ms Matapo had not been honest with him about not wanting to repair their relationship.
The Applicant said he would have simply moved on if she had been honest with him. The Applicant also admitted to assaulting Ms Matapo in the car, chipping her tooth, and also to leaving his two very young children on the side of the road and driving off. He had also driven his car into the garage of the home occupied by Ms Matapo in the hope that she would be evicted.
The Applicant said that at the time of the offences he was still very much in love with Ms Matapo, however he was now “just over it”.
When talking about his family, the Applicant acknowledged that he was part of a close knit and loving family. In particular, he was close to his aunt and uncle, Mr and Mrs Aitoa, who had always been there for him and with whom he had lived whilst completing years 9,10 and 11 at school. After he left school, he went to work for his uncle and had maintained a close relationship.
If allowed to remain in Australia, the Applicant intended to work for his uncle and to live with his uncle and aunt. He said that there was also strong support from the wider family. He wanted to be with his family and particularly with his boys. He said it was the love of his boys and the desire to be part of their lives that had “kept him going” whilst in prison.
The Applicant said that prior to going to prison he had been very close to his children, that he had spent time with them almost every day, and that he took them wherever he went. He continued to provide weekly financial support for the boys and to provide additional amounts of money whenever it was needed. The last time he had seen his two boys was the week that he was arrested. He did not want the boys to go to the Cook Islands if he was returned there, as there was no future in the Cook Islands for them.
When questioned about the apprehended violence order (‘AVO’) against him, the Applicant said that his family would work with him to try to lift the AVO and to try to ensure that he was able to have regular contact with his children. He said he wanted to get to work as soon as possible in order to be able to provide financial support for the children.
When questioned by Counsel as to whether the real benefit the Applicant could provide his children was financial support, the Applicant said that he wanted to spend as much time as he could with the children and provide a good father figure for them.
He was asked whether he would contemplate family law proceedings in relation to parenting arrangements for the children and said that he had thought about it, but that previously he and Ms Matapo had been able to make informal arrangements for the children.
The Applicant expressed remorse in relation to his actions which led to his conviction and in particular, he said that leaving the children on the side of the road was “not thinking” and selfish. He was deeply ashamed of that behaviour. Counsel for the Minister also questioned the Applicant about the fact that he had assaulted Ms Matapo in the car with the children present and suggested that the Applicant had already had a negative effect on the lives of the children.
The Applicant also admitted to a number of other family violence offences, although it was not clear whether the children had been present on those occasions. The Applicant also gave evidence that he had sought to complete a number of courses in relation to anger management and he had also visited a psychologist.
When cross-examined about his family, the Applicant said that although his mother lived in the Cook Islands and he had relatives there, all of his close family networks were in Sydney. He said that he had been happy in Perth when he and Ms Matapo lived there and had not wanted to come to Sydney but did so because of Ms Matapo.
When questioned about where he would live if he was deported from Australia, the Applicant said that he would live in the Cook Islands but noted that work was very difficult to find there and also that wages were very low. He also said that it would be difficult to find work in New Zealand and that wages were not as high as the wages he could earn in Australia.
When questioned about his knowledge of the relationship between Ms Matapo and Mr Newbigging, the Applicant said that he had heard rumours but that he did not believe them as he thought Ms Matapo was still working with him to repair their relationship. He said that he had asked Ms Matapo whether she was in a relationship with Mr Newbigging and that she had denied it.
Counsel for the Minister put it to the Applicant that Ms Matapo had not told him about Mr Newbigging because she was afraid of him. The Applicant said in response that at the time he had asked about the relationship, he would have accepted that it was over if Ms Matapo had told him the truth and that he “just wanted closure”. In his view, Ms Matapo had fed him lies, claiming that everything was okay between them and telling him not to go out with other women. He accepted that he had no rights over Ms Matapo and said that he was very remorseful about his behaviour, stating that it was “out of character”.
The Applicant said that “it takes a lot” for him to get angry. He also said that it had taken him a while, including time in prison “to wake up” and that he now really wanted to put it all behind him and to move on with his life. It was noted that he had been exposed to domestic violence himself as a child.
In re-examination, the Applicant talked about the fact that Ms Matapo had often been violent towards him, including slapping and punching him. He has never complained about this behaviour.
During re-examination, the Applicant was told that Ms Matapo had said in her evidence to the Tribunal that much of what she had told the police in relation to the Applicant’s behaviour, including the bottle throwing incident, was not true. The Applicant gave no direct response.
The Applicant was also questioned both by way of cross-examination by the Minister’s representative and in re-examination about a fight whilst he was in prison, which was apparently sparked by him being called a “dog”. The Applicant said that this was a very derogatory term in prison and that he had to respond, or his life would have become much more difficult in the prison.
Ms Hoana Brunt
Ms Hoana Brunt is the mother of Ms Kiana Matapo and said that she knew the Applicant because of his relationship with her daughter.
Ms Brunt is a constable first class in the West Australian Police Force. She has worked with the police force in Western Australia for six and a half years and was previously a police officer in New Zealand for 13 years. She lived in Rarotonga in the Cook Islands until she moved with her daughter to Perth.
Ms Brunt said that her daughter had known the Applicant for six or seven years and that she had known him before the couple’s children were born.
Ms Brunt said that she knew the Applicant to be a kind and caring father and said that he had a very good relationship with Ms Matapo and was now “so ashamed of what happened”.
In her opinion, the Applicant had a very good relationship with his children, he was a very hard worker and she had never seen any concerning conduct by the Applicant towards either her daughter or the children. In her view, the incident in December 2018 was due to the breakdown of the relationship between the Applicant and her daughter. In her view, the Applicant should be given another chance.
The Applicant was said to be a “funny guy” and Ms Brunt had never seen him being aggressive in any way.
After the Applicant and Ms Matapo moved to Sydney, Ms Brunt spoke to Ms Matapo two or three times a week, but she did not speak to the Applicant. She was informed about the incident in December 2018 by the police. She was shocked and believed it was a “one-off”.
Ms Brunt was also of the view that the Applicant had learnt his lesson, that he loves his two boys very much and that he did not want to lose contact with them. She said she would be the first to want him “sent home” if she believed that the Applicant posed any threat to her daughter or his children. Ms Brunt emphasised that she saw the Applicant as a “placid” and “happy” guy and the assault occurred only because of what he saw when he entered Ms Matapo’s house on 16 December 2018.
Ms Brunt said that she had no doubt that the Applicant would do everything he could to care for his children and that he would do anything to get a job so that he could look after them, buy items for them, and contribute to household finances.
Ms Brunt gave evidence that the Applicant regularly took the children to the park and to the beach, and that the boys really wanted and needed him to be in their lives. She said that the Applicant had good moral values and she felt he had a very good influence on his two boys. The incarceration of the Applicant had deprived the boys of a father figure in their lives.
If the Applicant were to be deported, Ms Brunt felt this would be detrimental and cause the children to miss out on having a father figure in their lives.
Ms Brunt said that the Applicant and her daughter had family in the Cook Islands and that they had visited periodically.
Ms Brunt believed that if her daughter had been experiencing problems with the Applicant whilst they were living in Sydney she would have told her.
Ms Brunt said that she would like the Applicant to see the boys and that she would like to take them to see him at the Yongah Hill Immigration Detention Centre, where he is detained, near Perth. When questioned about the AVO taken out by the police against the Applicant, Ms Brunt said that her daughter wanted to have the AVO revoked. Ms Brunt had not seen the terms of the AVO and was unsure as to whether she could take the boys to see the Applicant or not.
When all of the details of 16 December 2018 were put to her, including the Applicant leaving the boys on the side of a busy road, Ms Brunt said that she regarded it all as a “one-off”.
Mr and Mrs Aitoa
Mr John Aitoa
Mr Aitoa is the Applicant’s uncle. The Applicant is Mr Aitoa’s wife’s nephew and he has known the Applicant since he was born. The Applicant lived with Mr and Mrs Aitoa for a number of years and had also lived with his grandparents and with his mother. A godparent had brought the Applicant to Australia and he had asked to move in with Mr and Mrs Aitoa. He had lived with Mr Aitoa’s sister and family but then asked to live with Mr and Mrs Aitoa. He had been moved around as a child and was with Mr and Mrs Aitoa from the ages of about 8-10 years. Mr Aitoa said the Applicant had a “tough time” growing up without a father figure and that he would not want to see his sons in the same position.
Mr Aitoa said that he knew Ms Matapo well and that they spoke often. In the past she and the Applicant had visited Mr Aitoa’s home regularly and the Applicant was always seen to be very good with the children.
Mr Aitoa believed that the Applicant had been suffering from post-traumatic stress as a result of his difficult upbringing. He was aware that the Applicant had been seeking help and believed that he had been rehabilitated.
Mr Aitoa had offered the Applicant a job which would pay him at least $1500 per week after tax.
Mr Aitoa said that he saw the Applicant regularly, that the Applicant had been employed in his business and that he got on well with colleagues. He had never seen any concerning conduct on the part of the Applicant.
Mr Aitoa said that in his opinion, the incident on 16 December 2018 was completely out of character for the Applicant, that the Applicant regretted the whole situation, that he was remorseful and that he was able to tell from his face how deeply he regretted his actions.
Mrs Marie Aitoa
Mrs Aitoa gave evidence that the Applicant’s mother is her younger sister. She has her own family in Australia, and her eldest daughter and the Applicant have always been close friends.
Mrs Aitoa has known the Applicant since birth and said he was raised by his aunt’s grandparents and uncles in New Zealand and Australia.
She has been to visit the Applicant in jail, when possible, to let him know that his family is still there and that they love and care for him. She said the Applicant was always apologising for his behaviour. Mrs Aitoa had never seen the Applicant being violent towards Ms Matapo or others and she had never heard of the Applicant being abusive or violent around his children. She said that he was always at their house with the boys, that he bathed and fed them, and put them to bed.
In her view, the Applicant loves the boys very much and they would be very safe with him. She says that the youngest child is always asking for his father and that he does not have any other father figure in his life.
Mrs Aitoa said that they had tried to give financial support where necessary to both the Applicant and Ms Matapo.
At the time of the incident in December 2018, Mrs Aitoa said that she had been contacted by Ms Matapo saying that the Applicant had beaten her up. It was the only time Ms Matapo had ever raised the Applicant’s behaviour with her.
In relation to the Applicant’s offending, Mrs Aitoa said that in her view it was a “one-off” and had been caused by Ms Matapo not wanting to have the children, even though it was her weekend to take care of them. She said that the trigger was the Applicant trying to return them, not getting a response from Ms Matapo, and finding her in bed with someone else.
Mrs Aitoa said that she was still in contact with Ms Matapo.
Mrs Aitoa was aware of the AVO but said that she was aware that Ms Matapo is open to the Applicant coming back into the lives of his sons. She was not aware of the terms of the AVO.
Ms Kiana Matapo
Ms Kiana Matapo gave evidence that she is now living as a single mother.
She was in a previous relationship with the Applicant for about five years. They had met in the Cook Islands and later moved to Australia. The couple had two children together, namely Tyson, who was born in Sydney and is now aged 5, and Elias, who was born in Perth and is now aged 4.
Ms Matapo said that the Applicant always supported the family, that the children were safe around him, and that when she and the Applicant were together as a couple, they did not really have any problems. The problems started when the relationship broke down.
Ms Matapo said that in her view the incident of December 2018 was “out of character” for the Applicant and a “one-off event”. She said that the person he was that day was “not like him” and that she had never previously seen him “like that”.
The Applicant had played an important role in the children’s lives. She said that the children listened to the Applicant and that they respected their parents. The Applicant would take the children to the park, day-care, and generally look after them. She said it had been a big adjustment for the children not having the Applicant in their lives and that they are always asking to go to his house and asking when he will come to see them.
The Applicant had always provided money to support the family. Prior to going to jail, the Applicant had transferred money weekly to support the family. When he went to jail, Ms Matapo needed to move back to Perth to live with her mother. She said that she now works full time and “hardly sees the children”.
Ms Matapo said that on the weekend of 16 December 2018, she was meant to have the children and the problems occurred when the Applicant brought the children back to her.
Ms Matapo said that she had not been honest with the Applicant about her relationship with Mr Newbigging.
Ms Matapo said she had made enquiries in relation to having the AVO revoked. She said she was happy for the Applicant to see the children as soon as possible, although she had no interest in any future relationship with the Applicant. She did not appear to know the exact terms of the AVO, which she said the police had taken out.
Under cross-examination, Ms Matapo said that if the Applicant were to be removed from Australia, it would be financially impossible for her to go to New Zealand or the Cook Islands with the children to visit the Applicant.
She also referred to the Applicant’s suicide threats when they were talking about their breakup and said that she felt that she had to “sugar-coat” things for the Applicant.
She said that an incident in the Cook Islands between her and the Applicant had occurred because she had not been truthful with the Applicant about her relationship with an ex-boyfriend. The Applicant found her talking to the ex-boyfriend on the telephone at midnight and hit her.
The Minister’s representative referred Ms Matapo to a statement she had made to the police about an incident where the Applicant threw a bottle at her after she had thrown a bottle at the Applicant. Ms Matapo said that what she told the police on that occasion had not been accurate.
Ms Matapo also said, when asked by the Minister’s representative about the Applicant threatening to kill her during the incident on 16 December 2018, that she could not recall him making such a statement.
When challenged as to whether the Applicant’s behaviour on 16 December 2018 was out of character, given the history of incidents that have occurred, Ms Matapo said that it was out of character and that if she had not “manipulated” the Applicant, he may have behaved differently.
Ms Matapo said that she felt very sorry for the children after the December incident and that they deserved better parenting from both the Applicant and from her. She said that it was not fair to say that violence between her and the Applicant only went one way.
Ms Matapo said that she did not feel that the Applicant would be able to financially support the children if he lived in the Cook Islands. She said she would facilitate the children spending time with the Applicant, if he were in Australia.
Ms Matapo said that the Applicant talks to her sister’s boyfriend almost every day and that he is a “different person now”.
Ms Matapo said that she was not afraid of the Applicant and that, although there has been a history of domestic violence, it was not serious violence.
DISCUSSION
PRIMARY CONSIDERATIONS
Primary Consideration A: Protection of the Australian Community
The first consideration for the Tribunal relates to the protection of the Australian community from criminal or other serious conduct. The Direction requires the Tribunal to consider, firstly, the nature and seriousness of the non-citizens conduct, and secondly, the risk to the Australian community if the non-citizen were to re-offend or engage in other serious misconduct.
Nature and seriousness of conduct
The Applicant’s criminal history was usefully summarised by the Respondent as follows:
Date
Offence
Sentence
1 May 2020
Aggravated break & enter and commit serious indictable offence – people there – SI
Imprisonment – aggregate sentence of 3 years and 7 months – non-parole period of 2 years and 1 month
1 May 2020
Take/detain person with intention to obtain advantage – cause actual bodily harm (DV) – SI
Imprisonment – aggregate sentence of 3 years and 7 months – non-parole period of 2 years and 1 month
1 May 2020
Intentionally choke etc. person without consent (DV) – T1
(Taken into account on sentencing pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) s 32)
1 May 2020
Destroy or damage property
(Taken into account on sentencing pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) s 32)
The events which led to the Applicant being charged and ultimately convicted were the subject of quite detailed evidence both from the Applicant and from Ms Matapo.
It is of further concern that the Applicant engaged in at least some of this behaviour in the presence of his children, and that during his offending whilst in the car with Ms Matapo, he abandoned the children on the side of a road.
The relevant Direction provides that the following categories of violent crime are to be viewed very seriously:
(a)violent crimes;
(b)crimes of a violent nature against women regardless of the sentence imposed; and
(c)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
Clearly the Applicant’s behaviour fits within all of the above categories. He admitted both to the District Court and to the Tribunal that he committed a number of violent crimes against Ms Matapo and these offences were committed whilst his children were either in the vicinity, or more directly, in the car along with the Applicant and Ms Matapo.
The Applicant was sentenced to a lengthy term of imprisonment, although I note that term was cut by 25% due to the Applicant immediately pleading guilty to the crimes with which he was charged.
The Counsel for the Respondent put to the Tribunal that the Applicant’s conduct occurred relatively frequently and that there was a trend of increasing seriousness in the Applicant’s offending.
I accept that although the offences outlined above were the only offences for which the Applicant was convicted, there had been other occasions on which Ms Matapo had called the police, including the incident where the Applicant threw a bottle at Ms Matapo and the Applicant breaking into her home. There was also an occasion in July 2018 where the Applicant had apparently threatened suicide.
Ultimately, I give less weight to these incidents than might otherwise be the case because at the hearing Ms Matapo said that she had lied to the police in relation to some of the offences, and also gave evidence that, at least in relation to the bottle throwing incident, she may have provoked it by throwing a bottle at the Applicant. Of course, none of this excuses the Applicant’s behaviour, but the Tribunal cannot disregard evidence that Ms Matapo either lied to the police and exaggerated the seriousness of the incidents which occurred, or, lied to the Tribunal in order to assist the Applicant’s case. There was not enough evidence for the Tribunal to decide which statements, either to the Tribunal or the police, were true. The Tribunal does, and is required to, accept the decision of the sentencing judge.
The Applicant seems to have had a fairly tumultuous relationship with Ms Matapo. What is incontrovertible is that he was convicted of very serious crimes which the Tribunal must take very seriously. The Respondent also raised the fact that the Applicant had some eight traffic convictions recorded against him between 2014 and 2016, including driving without a licence, negligent driving and speeding, although those convictions carry little weight with the Tribunal.
In light of all of the above evidence, it is clear that at least in relation to Ms Matapo, the Applicant displayed a complete lack of self-control and a willingness to engage in what can only be described as an utterly unacceptable level of physical and verbal abuse, regardless of the truth of what Ms Matapo told the police in relation to the incidents of domestic violence leading up to the offences for which the Applicant was convicted.
Risk of Harm to the Australian Community
The Tribunal is required to consider the nature of the harm caused if the Applicant were to engage in further criminal or serious conduct, and the likelihood of the Applicant engaging in such conduct.
As outlined above, the Applicant’s offences are considered very serious indeed. They were basically all related to domestic violence, and the presence of the Applicant’s own children did not seem to deter him from such behaviour. It is readily apparent that if the Applicant were to engage in similar behaviour again, there is likely to be serious harm.
In relation to the question of whether the Applicant is likely to re-offend, I note the comments of the sentencing judge who said that the Applicant’s criminal offending was due to frustration and “uncontained anger”. It was put to the Tribunal on behalf of the Respondent that little weight should be placed on the remarks of the sentencing judge, because it was said that the sentencing judge was not aware of previous incidents of domestic violence. However, in my view, it is appropriate to place considerable weight on the remarks of the sentencing judge, who I must assume had all of the relevant evidence before her and gave that evidence full and appropriate consideration. In my view, it is not for the Tribunal to second guess the judgement or remarks of the sentencing judge.
A psychologist, Ms De Santa Brigida, reported that the Applicant had said that he himself had been exposed to family violence at a young age, and that he met the criteria for diagnosis of post-traumatic stress disorder arising from instability in his home and family life, and his father’s suicide.
Mr and Mrs Aitoa each gave evidence of the Applicant having been moved around to various family members as a result of his mother giving birth to him when she herself was very young. The Applicant had asked to go and live with Mr and Mrs Aitoa to complete his schooling and ultimately move into the workforce. This was no doubt due to him seeking stability.
Mr and Mrs Aitoa also gave evidence that the Applicant’s offending was “out of character” and this same evidence was given by the Applicant’s mother-in-law, Ms Brunt, Ms Matapo and the Applicant himself.
I give significant weight to the evidence of Ms Brunt. Ms Brunt is the Applicant’s mother in law, and the Applicant and her daughter lived with her for a significant period of time prior to moving to Sydney. Further, Ms Brunt is a police officer who is familiar with domestic violence, and she gave unequivocal evidence to the Tribunal that she had not seen violent or abusive behaviour on the part of the Applicant towards her daughter, and that if she had done so, she would have been the first to react to it.
I give little weight to the incident which occurred in jail on 3 March 2019. I accept the Applicant’s evidence that a fracas occurred that he was not involved in and that he reacted to having been called a “dog”, which is apparently a serious insult within the prison system, and one to which he felt he was compelled to react. The Applicant does seem to have a very strong feeling of personal pride and the evidence of both the incidents in jail, and the domestic violence illustrate that he tends to react when feels he has been insulted or not treated with respect. There may be cultural factors that are relevant.
The Applicant spoke of trying to undertake courses to deal with anger management, and to better control his emotions. I accept that he did make serious efforts in this regard and that it was difficult for him to access these programs whilst being moved around within the prison system. He has made an effort while in immigration detention to access courses in anger management.
In light of all the evidence, I am of the opinion that the Applicant’s risk of re-offending and causing further serious harm to the Australian community is at the low to moderate level. There is no evidence of any tendency on the part of the Applicant to engage in random violence.
Overall, I regard this first primary consideration as weighing heavily against revocation.
Primary Consideration B: Family Violence committed by the non-citizen
The Applicant was convicted of a number of domestic violence offences which, appropriately as demonstrated by paragraph 2(1) of Direction 90, are taken very seriously by the Australian Government.
The Tribunal is required to take into account a number of factors in considering domestic violence including the frequency of the relevant conduct, whether there is any trend of increasing seriousness, the cumulative effect of repeated family violence, and whether there has been any rehabilitation since the last incident of family violence.
As discussed above, there is some doubt as to the exact nature of various incidents which occurred prior to the events which led to the Applicant being convicted. However, at the very least, the reports of Ms Matapo to the police demonstrate a pattern of domestic violence, either in terms of verbal or physical abuse. The fact that the Applicant may have been provoked by Ms Matapo does not excuse his behaviour or lack of self-control. Even if the Tribunal were to accept that Ms Matapo lied or exaggerated to the police, the Applicant’s behaviour remains serious.
The Applicant did accept responsibility for his acts of family violence and the potential consequences for his children, although it must be said that the evidence before the Tribunal in relation to any effect on the children was not strong. Clearly however, it was adverse to them.
Having regard to the various elements contained in the Direction and to the evidence before the Tribunal, this consideration weighs heavily against revocation.
Primary Consideration C: Best Interests of Minor Children in Australia
The Applicant has two young boys, Tyson, born in July 2015 (now 5) and Elias, born in October 2016 (now 4). They are the children of the Applicant and Ms Matapo.
The children currently reside in Perth with their mother, Ms Matapo. Ms Matapo gave evidence that she had been living with her mother, but that she was intending to move out to her own place with the children. She said that she was finding life very difficult in having to work full-time and trying to care for the children. She said she could not spend much time with the children. Her finances were also very stretched.
This is consistent with the evidence of Mr and Mrs Aitoa that they tried to assist both the Applicant and Ms Matapo financially, whilst the Applicant was in jail.
I have previously noted the Applicant’s inexplicable, and in my view reprehensible, behaviour in leaving his two young children unattended on the side of the road because he was in a rage and totally focused on punishing Ms Matapo.
I also take into account that on the weekend of 15 and 16 December 2018, when the events for which the Applicant was convicted occurred, there are a number of matters that are also relevant. Firstly, the Applicant gave evidence which was not contested in any way that the particular weekend was one where normally the Applicant would not have had the children under the informal arrangement he had with Ms Matapo as to their care. In particular, the Applicant wanted to do Christmas shopping to buy presents for the children, and he wanted those presents to be a surprise. He had agreed to take the children because Ms Matapo said it was inconvenient for her to have them on that weekend. In fact, she did not want to have the children because she was going to spend the weekend with Mr Newbigging, with whom the Applicant later found her in bed.
All of the witnesses called gave clear evidence that the Applicant loved his children and that prior to being imprisoned, he had played a major part in their lives, even though they were very young. He spent a lot of time with the children, including taking them to the park and looking after them.
Both Ms Matapo and her mother, Ms Brunt, gave evidence that the children were missing the Applicant, and that they wanted to spend time with him.
The Applicant said the thing that had kept him going was his love for his children, his desire to provide financially for them, spend time with them and to see them growing up. The boys were now playing rugby league and the Applicant had been a rugby league player, it would appear at quite a high level. In summary, the Applicant saw his boys as central to his life.
The situation in relation to the children was complicated by the presence of an AVO, which Ms Matapo said had been taken out by the police on her behalf. She said that she wanted the order lifted so that the Applicant could see his children.
All of the witnesses and the Applicant felt that the AVO had prevented the Applicant from having any contact with his children, including contact via telephone or social media whilst he was in prison. It seemed unusual that no one knew the terms of the AVO, including Ms Matapo. It is not for the Tribunal to interpret the terms of the AVO, nor to give any advice as to how the AVO can be varied or lifted. It is of concern that Ms Matapo seems to have made some efforts to have the AVO lifted, but nobody seems to have taken any real or effective action. This is somewhat disturbing given that the presence of the AVO has already had the effect of removing the Applicant from the children’s lives for a number of years.
It is in my view, generally accepted that it is clearly in the best interests of children to have an ongoing relationship with both of their parents, unless there is a very clear reason why this should not occur. There was no evidence at all of the Applicant ever having hit or otherwise behaved inappropriately towards his children, other than exposing them to violence against Ms Matapo. If that factor were removed, and the Tribunal was told both parties had “moved on”, there seems no reason at all why the Applicant should not see his children. In fact, there is every reason to encourage the relationship between the Applicant and his children.
I accept the evidence of the Applicant that he wants to spend as much time as he possibly can with his children and that he wants to provide for them financially. I also accept Ms Matapo’s evidence that she wants the children to spend time with the Applicant, and that she needs the financial support that the Applicant would be able to provide if he were not in detention and was able to work. On the evidence, the children’s lives will be better with financial support from the Applicant.
In light of Ms Matapo’s evidence, it would seem incumbent upon her to take the necessary steps to have the AVO, which is said to prevent the Applicant from having contact with his children, lifted, if that is in fact the effect of the AVO. At the very least, Ms Matapo needs to find out the exact terms of the AVO, its duration and how to vary or lift it. Given her professional background, Ms Brunt could potentially assist in this regard.
I do not accept the implied criticism of the Applicant in the questions of the Minister’s representative that he made no effort to see his children. He was in prison, aware of the AVO, presumably without legal advice as to what action he should take and was removed from prison to immigration detention. It is a matter of public record that there is serious concern as to the workings of the AVO system including its complexity. Moreover, the primary mover in relation to the AVO continues to be Ms Matapo. If the Applicant had or has any options in relation to the AVO, they are limited and likely to involve considerable expense if he had to go to court.
I also do not accept any implications that the Applicant is somehow at fault because he did not seek to access the family law system in relation to parenting arrangements for his children. He was at a disadvantage in that he was in prison and there was an AVO in place. The evidence showed that he and Ms Matapo had been able to jointly agree on parenting arrangements in the past and there is every indication that they will be able to do so again. In fact, Ms Matapo said she wanted to facilitate contact and the Applicant wants to see his children. It is not clear why he would go to court, especially when it is well accepted that it is in the best interests of children for their parents to reach an amicable agreement as to parenting arrangements without the need to go to court.
I give this primary consideration heavy weight in favour of revocation.
Primary Consideration D: Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian community. Broadly these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court of the Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
The Applicant’s criminal charges, his offences against women, and his domestic violence indicate that he has failed to abide by Australian law. Having regard to the provisions of Direction 90 and the Applicant’s offences, the Australian community would expect that the Applicant is not given the privilege of holding an Australian visa.
I give this consideration moderate to heavy weight in favour of non-revocation.
OTHER CONSIDERATIONS
Extent of impediments if removed
From the evidence, the Applicant is part of a very large and it would appear, quite interconnected and supportive family in both New Zealand, the Cook Islands and Australia. The Applicant is 26 years of age and does not seem to suffer from any major physical or mental ailments, although as mentioned previously, there is a psychologist report that refers to the possibility of the Applicant suffering post-traumatic stress.
The Applicant gave evidence that all of the members of the family with whom he has the closest relationships are resident in Australia. He has relatives in the Cook Islands, with whom he has regular contact, but fewer relatives in New Zealand.
The Applicant and Ms Brunt both gave evidence that finding employment in the Cook Islands would be difficult, and even if the Applicant were able to find employment, his wages would be very low by Australian standards.
The Applicant does have the right to work in New Zealand but the only evidence before the Tribunal was that it would be difficult to find work there, that he would have less family support, and that although wages are better than in the Cook Islands, they would be less than if he were working in Australia. This would impact his capacity to provide support for his children.
It was apparent from the evidence that Mr and Mrs Aitoa have played and will continue to play a major role in the Applicant’s life. The Applicant and Mr and Mrs Aitoa gave evidence that the Applicant will live with them if released from detention, and that he would be given well-paid work in Mr Aitoa’s business, where he has relevant experience and qualifications.
Overall, this consideration weighs heavily in favour of revocation.
Impact on the victims
The only evidence the Tribunal has in this regard is the evidence of Ms Matapo, which as previously explained, must be regarded as somewhat problematic. At the hearing, Ms Matapo was very supportive of the Applicant and described his offending behaviour as “out of character” and said that she has no fear of the Applicant. Despite this, I do not discount that the Applicant’s behaviour had a negative impact on Ms Matapo.
For his part, the Applicant said that any relationship with Ms Matapo is now over and would have been over before the offending behaviour occurred if Ms Matapo had been truthful with him about her relationship with Mr Newbigging.
I give this consideration neutral weight in relation to revocation.
Ties to the Australian Community
The Applicant first came to Australia at the age of 3. He came to live in Australia in 2009, when he was 14 years old, and has moved between Australia and the Cook Islands, with most of the time since 2014 having been spent in Australia.
The Applicant is particularly close to his aunt and uncle, Mr and Mrs Aitoa, and also appears to have a large and supportive family in Australia. The Applicant’s evidence was that all of the family members with whom he has the closest relationships reside in Australia.
On the basis of the evidence, it is fair to say that Mr and Mrs Aitoa fulfil and have fulfilled a parental role in the Applicant’s life and will continue to be key supports for him.
The Applicant has two children in Australia and as previously outlined, I accept the evidence of both the Applicant and Ms Matapo that the Applicant will have a significant role in the children’s lives in the future, particularly if he remains in Australia, and that he will be an important source of financial support for them.
The Applicant has been offered a good job in Australia, in an industry for which he is appropriately qualified, and in which he would appear to be paid well.
I note the evidence that the Applicant has always sought to undertake paid work, and to provide for himself, Ms Matapo and the children. He was described by all of the witnesses as a good provider for his children.
I give this consideration heavy weight in favour revocation.
GENERAL MATTERS
It is of great concern to me in this matter that the hearing had to be postponed until what was essentially the last moment due to a number of factors. Firstly, the Applicant’s migration agent withdrew from representing him 8 days before the hearing, and also indicated that the Applicant did not wish to appear before the Tribunal. Because of the importance of the matter to the Applicant, the Tribunal made its own inquiries and found that the Applicant did indeed wish to appear and present a case before the Tribunal.
It is appropriate to express serious concerns about the behaviour of the migration agent, which at the very least, would appear to warrant some investigation, as their behaviour may have led to the Applicant effectively losing his rights to a hearing, had the Tribunal not made its own inquiries.
Secondly, the Applicant was moved from Villawood Immigration Detention Centre to Yongah Hill Immigration Detention Centre when time for a hearing before the Tribunal was running out. At that stage, the Applicant was trying to organise new legal representation and work with his lawyers to be able to put the best case before the Tribunal.
Without wishing to question in any way the fact that those in detention can be moved from one place to another, it would seem appropriate for at least some consideration to be given to the fact that movement from one detention centre to another may adversely affect an Applicant’s ability to prepare and present a case to the Tribunal when there is limited time left to do so.
DECISION
This is very much a borderline case. It is impossible to excuse the Applicant’s domestic violence, property damage committed within a domestic violence setting, and leaving his children on the side of the road in an ungovernable rage.
On the other hand, I accept the evidence that the Applicant played a major role in the lives of his children before going to prison, that he loves the children and that he wants to continue to play a role in their lives, both emotionally and financially. It is clearly in their best interests that he does so.
He has a large and supportive family, and his former partner, the victim of his domestic violence, and her mother, both gave unequivocal evidence to the Tribunal that they want him to remain in Australia. He has the prospect of a good job that will enable him to provide well for his children and I accept the evidence that he has learned from his time in prison, including the Applicant’s own evidence that it took him “about a month” in prison to come to the realisation of the unacceptable nature of his behaviour and its consequences for him. He said he wants to put it all behind him and move on in a positive way.
The Tribunal does not have any authority in relation to the AVO which is in place and is said to prevent the Applicant from having any contact with his children, but it is important that Ms Matapo, the Applicant and the family take active steps to get proper advice in order to have the AVO lifted or varied to enable the Applicant to have contact with his children. I note that although I raised concerns about inconsistencies in Ms Matapo’s evidence, I accept that she does want her children to have contact with the Applicant and that she needs his financial support. Her evidence was totally consistent in this regard.
Overall, having assigned appropriate weight to all of the relevant factors, I am of the opinion that the correct or preferable decision is to set aside the delegate’s decision and substitute it with a decision to revoke the cancellation of the Applicant’s Special Category (Subclass 444) visa.
I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President Pascoe AC CVO
............................[SGD]............................................
Associate
Dated: 24 June 2021
Date(s) of hearing: 17, 18 June 2021 Date final submissions received: 18 June 2021 Solicitors for the Applicant: Mr Charles Ukeagbu, Lucky Iyare and Associates Solicitors for the Respondent: Mr Edwin Taylor, Mills Oakley
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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