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

[2021] AATA 2729

Vaea and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2729 (15 July 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2731

Re:Tausea Joseph Vaea

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:15 July 2021

Date of written reasons:        6 August 2021

Place:Sydney

The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked. The Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – mandatory cancellation – failure to pass the character test – Direction 90 – primary considerations – protection of Australian community – best interests of minor children – expectations of Australian community – other considerations – impediments if removed from Australia – impact on victims – links to Australian community – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Migration Act 1958 (Cth) ss 501, 501CA

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998

CASES

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69

FYBR and Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Jal v Minister for Immigration and Border Protection [2016] AATA 789

Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Re Hao and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1172

Re Jagroop and Minister for Immigration and Border Protection (2015) AATA 751

Saleh and Minister for Immigration and Border Protection [2017] AATA 367

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

SECONDARY MATERIALS

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

WRITTEN REASONS FOR DECISION

Senior Member Linda Kirk

1. Tausea Joseph Vaea (‘the Applicant’) is a 22-year-old citizen of New Zealand,[1] who first arrived in Australia on 27 March 2019.[2]  Prior to its cancellation, the Applicant held a Special Category (Class TY) (subclass 444) visa (‘the visa’).[3]

   [1] Exhibit R1, G1, 7.

   [2] Exhibit R1, G1, 7.

   [3] Exhibit R1, G1, 7.

2. On 9 December 2020 the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[4] At the time, the Applicant was serving a sentence of full-time imprisonment at Metropolitan Special Programs Centre in New South Wales.[5]

   [4] Exhibit R1, G3, 64.

   [5] Exhibit R1, G4, 70.

3. On 19 January 2021, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6] 

   [6] Exhibit R1, G3, 28-32.

4. On 4 March 2021, the Applicant signed a request for removal from Australia.[7]

   [7] Exhibit R1, G3, 60-63.

5. On 9 April 2021, a delegate of the Respondent decided, pursuant to subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[8]

   [8] Exhibit R1, G2-G3, 8-18.

6. On 30 April 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[9]

   [9] Exhibit R1, G1, 1-7.

7. On 18 June 2021, the Applicant was released from prison on parole. As he was an unlawful non-citizen and a person who had consented to removal from Australia, he was removed from Australia to New Zealand on that date.[10]

   [10]  Transcript of proceedings dated 6 July 2021, 5.  

8. The matter was heard by the Tribunal on 6 July 2021. The Applicant attended the hearing by videoconference from Auckland and was self-represented. He was assisted by Ms Fifita Latu from Persons At Risk Solutions (‘PARS’). The Applicant gave evidence and was cross-examined at the hearing.

9. The material before the Tribunal consists of:

   ·Section 501 G-Documents filed 17 May 2021 (G1-G5, pages 1- 99) (‘Exhibit R1’);

   ·Supplementary G Documents filed 23 June 2021 (G6-G7, pages 100 - 732) (‘Exhibit R2’).

10. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

    PRELIMINARY ISSUE

11. The Tribunal invited oral submissions from the parties in respect of whether the 84-day time limit continues to apply to this proceeding in circumstances where the Applicant is no longer in the migration zone.

12. The 84-day time limit is set out in subsection 500(6L) of the Act, which provides (emphasis added).

    (6L) If:

    (a) an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

    (b) the decision relates to a person in the migration zone; and

    (c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

    the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

13. The Respondent contends, and the Tribunal finds for the reasons which follow, that the application of the 84-day time limit was triggered at the date of the Reviewable Decision, and it continues to apply regardless of the fact the Applicant has departed the migration zone.

14. The ‘decision’ referred to in subsection 500(6L)(b) refers in this matter to the decision of the delegate made under subsection 501CA(4) of the Act. This is evident from subsection 500(6L)(a), which identifies the ‘decision’ referred to in subsection 500(6L)(b) as being ‘a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa’. The focus of subsection 500(6L)(b) is the ‘decision’, which is fixed at a point in time and ‘relates to a person in the migration zone.’

15. If Parliament had intended that the 84-day rule is triggered when a merits review application is made, or when the Tribunal makes its decision on review, it could have effected this by making the ‘person’ about whose visa a decision was made and their status in the migration zone the subject of paragraph (b).

16. The context and purpose of subsection 500(6L) supports a construction of subsection 500(6L)(b) as referring to a decision that relates to a person in the migration zone at the time it is made.

17. Subsections 500(6A) to (6L) set out a suite of procedural requirements for merits review applications relating to section 501 and 501CA decisions. Each subsection requires that:

    1)there be ‘a decision under section 501 of the Act or a decision under subsection 501CA(4) of the Act’; and

    2)such a decision ‘relates to a person in the migration zone’.

18. The identical wording of these subsections in the context of these procedural requirements for merits review applications indicates that they are intended to be interpreted and applied consistently.

19. If the ‘decision’ referred to in subsection 500(6L)(b) did not relate to the date of the delegate’s decision, a number of the procedural requirements contained in the subsections of section 500 would be made unworkable. For example, subsections 500(6B)-(6D) are clearly premised on the ‘decision’ being that made in relation to a person in the migration zone.

    (6A) If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to the decision.

    (6B) If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

    (6C)     If a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of:

    (a) the document notifying the person of the decision in accordance with subsection 501G(1); and

    (b) one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision.

    (6D)     If an application is made to the Tribunal for a review of a decision under section 501, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa, that relates to a person in the migration zone:

    (a) the Registrar of the Tribunal must notify the Minister that the application has been made; and

    (b) paragraph 29AC(1)(b) and section 37 of the Administrative Appeals Tribunal Act 1975 do not apply to the decision or the application.

20. Taking subsection 500(6B) as an example, it could not have been the intention of Parliament for persons subject to the nine day period in which they must lodge an application for review of a ‘decision’ with the Tribunal under the expedited provisions if they are in the migration zone, to be able to circumvent this time period by departing the migration zone and filing an application offshore and gaining the benefit of additional time in which to lodge their application for review. Similarly, in relation to subsection 500(6D), which exempts the Minister from the application of section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), if an application is made under section 500 of the Act, it could not have been Parliament’s intention that an Applicant’s departure from the migration zone could result in the application of section 37 to the review application.

21. The Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 states at [37]-[39];

    Item 21    After subsection 500(6)

    37.      This item inserts new subsections 500(6A) to (6L). These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government's concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person's character.

    38.      These amendments are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled as a consequence of: them being unable to satisfy a delegate of the Minister that they pass the character test; and there being insufficient mitigating factors for the delegate to exercise the discretion not to refuse a visa application or not to cancel a visa.

    39. The amendments to the process of review of character decisions by the AAT apply only to decisions regarding persons who are in the migration zone. The "migration zone" is defined in subsection 5(1) of the Act.

22. Paragraph 37 above of the Explanatory Memorandum was cited by the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [58].

23. The Tribunal finds that the purpose of the expedited provisions for review of decisions under section 501 and subsection 501CA(4) of the Act would be frustrated if they were not to apply in circumstances in which an applicant departs the migration zone following the making of the decision to refuse or cancel their visa. The Tribunal makes this finding for reason that there would be an inconsistency in the processes applicable to persons who are the subject of a delegate’s decision under sections 501 or 501CA while in the migration zone.

24. This reasoning finds support in the Tribunal’s decision In Re Hao and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1172. Deputy President Walker at [24]-[25] stated:

    … if one works from the statutory language itself, as the tribunal must, I think it is hard to escape the conclusion that when the applicant is within the migration zone at the time of the decision, the statutory scheme created by the legislature, including s 501G(1)(f)(v), triggers the expedited visa regime, which runs its course whether the applicant remains within the migration zone or not.  The tribunal is not given any power to terminate its operation if circumstances change.  Further, the construction urged by the applicant would have the effect that an applicant who had access to financial resources and to a convenient nearby country, as in this case, could acquire more favourable procedural conditions in mid-stream, as it were, by electing to make a monitored departure rather than remaining in detention within the migration zone.

    The point is not without difficulty and the courts have not yet been required to give any guidance on the proper construction of the expedited provisions in this respect.  There are persuasive arguments on both sides, but I think the applicant’s argument gives too much work to the use of the present tense in the special provisions and not enough to the specific reference to the decision as being the operative circumstance.  Accordingly I ruled that the special expedited visa procedure applied.

    (Emphasis added)

25. More recently, the same conclusion was reached by Deputy President Forgie in Re Jagroop and Minister for Immigration and Border Protection (2015) AATA 751 at [60]-[63]. The Deputy President observed:

    … ss 500(6A) to (6L) of the Migration Act … require the Tribunal to follow particular procedures and limit the scope of its discretion to have regard to all relevant evidentiary material. Those provisions apply when an application made to the Tribunal for review of “a decision under section 501” and “the decision relates to a person in the migration zone”. While it is true that Mr Jagroop was in the migration zone when the decision was made and when his application was lodged, he is no longer in it as he is in Fiji. Does that mean that ss 500(6A) to (6L) have no application or have only limited application?

    On one view, it could be said that they have no relevance for the decision no longer relates to a person in the migration zone.  While there is some attraction in this view, I do not think that it is the correct approach to take.  Sections 500(6A) to (6L) are clearly intended to expedite the review process.  At the same time, they are intended to provide an opportunity for the individual to know the evidentiary basis on which the decision was made and the reasons for it as well as to gather evidentiary material and present it to the Tribunal.  In order for the expedited process to apply to an application to the Tribunal, the decision had to relate to a person in the migration zone. 

    Mr Jagroop’s application was an application of that sort when he lodged it and so attracted the expedited provisions.  It was an application for review of a decision and that decision was one that “… relates to a person in the migration zone”.  Putting aside the situation that arises from a remittal for the moment, it seems to me that subsequent events cannot change that characterisation of that decision so that ss 500(6A) to (6L) no longer apply.  It is a characterisation that is determined by reference to the time at which the decision is made. 

    My reasons for forming that view relate to three matters.  The first is the expedited process itself.  It would be a process that would be frustrated were a person who is in the migration zone, but not in detention, able to leave in order to free him or herself of the restrictions of the expedited process but take advantage of pursuing the application for review from a country offshore and by participating by way of video or a remote link of some sort.  My second reason is that there is nothing inherent in each or any of the provisions that requires an applicant’s presence in order for them to continue to have full effect.   Even if the applicant were to leave the migration zone in the 84 days that is allowed for the review of the Minister’s decision under the expedited process, the review could proceed consistently with that process.  The third matter that leads me to this view is that of consistency of process for all who are in the migration zone when the decision to refuse or cancel a visa is made under s 501. 

    (Emphasis added)

26. Accordingly, for the reasons stated above, the Tribunal finds that the 84-day time period was triggered at the date of the Reviewable Decision on 9 April 2021. Furthermore, notwithstanding that the Applicant has departed the migration zone, the 84-day time period continues to apply to this review application.

    LEGISLATION

27. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)     The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    …; and

    (b)

    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

    
    
    

28. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:

    (7)  For the purposes of the character test, a person has a substantial criminal record   if:

    (a)…

    (b)…

    (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    …

29. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

30. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:

    (4) The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

31. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 90

1. The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[11]

   [11] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).

2. On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[12]

   [12] Direction, para 2-3.

3. The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens 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 non­citizens who have lived in the Australian community for most of their life, or from a very young age.

   (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

4. Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
   decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.

5. Paragraph 8 of the Direction identifies the following as primary considerations:

   a)Protection of the Australian community from criminal or other serious conduct;

   b)Whether the conduct engaged in constituted family violence;

   c)The best interests of minor children in Australia; and

   d)Expectations of the Australian community.

6. Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:

   a)International non-refoulement obligations;

   b)Extent of impediments if removed;

   c)Impact on victims; and

   d)Links to the Australian community, including:

   (i)Strength, nature and duration of ties to Australia; and

   (ii)Impact on Australian business interests.

7. Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘… information and evidence from independent and authoritative sources should be given appropriate weight.’

8. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[13]

   [13] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).

9. Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:

   … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.

   ISSUES FOR DETERMINATION

10. Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

11. There is no dispute that the Applicant made the representations required by subsection 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[14] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):

    ... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[15]

    [14] [2018] FCAFC 151.

    [15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

12. The issues for determination are:

    1)whether the Applicant passes the ‘character test’; and

    2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

13. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Background

14. The Applicant was born in New Zealand in 1999.[16] He was raised by his mother until he was aged three or four years, and he was then fostered by his mother’s cousins.[17] He completed his schooling in New Zealand to year 12.[18]  In 2015, he travelled to Samoa and lived with his mother for a period of about five years.[19]  His mother died in 2020.[20]  His father was deported from New Zealand to Tuvalu when he was aged two years following convictions for criminal offences.[21] He does not have any contact with his father.[22]  He has six brothers and nine sisters.[23] When he was growing up, he lived with all his brothers and four of his sisters.[24] Some of his brothers have committed criminal offences and some are ‘still on the run’.[25]  One of his brothers lives in Mount Druitt and works with the Rebel bikie gang, and two of his brothers in New Zealand are involved with the Black Power and Mongrels bike gangs.[26]

    [16] Exhibit R1, G1, 7.

    [17] Transcript of proceedings dated 6 July 2021, 15.

    [18] Exhibit R1, G3, 33-47.

    [19] Transcript of proceedings dated 6 July 2021, 13.

    [20] Transcript of proceedings dated 6 July 2021, 15.

    [21] Transcript of proceedings dated 6 July 2021, 14.

    [22] Transcript of proceedings dated 6 July 2021, 15.

    [23] Transcript of proceedings dated 6 July 2021, 13.

    [24] Transcript of proceedings dated 6 July 2021, 14.

    [25] Transcript of proceedings dated 6 July 2021, 18.

    [26] Transcript of proceedings dated 6 July 2021, 18-19.

15. The Applicant told the Tribunal in his oral evidence that his childhood in New Zealand was ‘hard’.[27]  There were drugs and alcohol in his mother’s cousin’s house, and he would often not go to school.[28] He would frequently get into fights and be expelled.[29] In his Personal Circumstances Form dated 19 January 2021, the Applicant wrote that he ‘was not provided with food or shelter’ and ‘had to beg, borrow and steal from the age 10 to survive.’[30] There was ‘a lot of severe violence’ in his family.[31]  He was ‘forced to do underground fighting to survive as a child’.[32] He told the Tribunal that these fights were with other school students and were organised by bikie gangs who would take bets on them.[33] 

    [27] Transcript of proceedings dated 6 July 2021, 15.

    [28] Transcript of proceedings dated 6 July 2021, 15.

    [29] Transcript of proceedings dated 6 July 2021, 15.

    [30] Exhibit R1, G3, 32.

    [31] Exhibit R1, G3, 32.

    [32] Exhibit R1, G3, 32.

    [33] Transcript of proceedings dated 6 July 2021, 16.

    Travel to and employment in Australia

16. The Applicant travelled to Australia from Samoa in May 2019 when he was aged 20 years with his uncle and nephew from his Dad’s side of the family.[34] He came here to take up a contract with his auntie to work as a fishmonger in Brisbane. He worked in this role for about one month.[35] After this work ended, he stayed in Australia so he could see his brother whom he had not seen for a couple of years. At this time, he had four brothers, three sisters and his grandparents living in Australia.[36] He subsequently worked with another uncle doing furniture removal in Sydney for two months and was paid in cash. He lived with his foster parents who were the same relatives he lived with when he was a young boy in New Zealand.[37]

    [34] Transcript of proceedings dated 6 July 2021, 22.

    [35] Transcript of proceedings dated 6 July 2021, 19.

    [36] Transcript of proceedings dated 6 July 2021, 19.

    [37] Transcript of proceedings dated 6 July 2021, 20-21.

    Mental health and drug use

17. When he was in New Zealand, he used cocaine and cannabis and abused alcohol from the age of 11 or 12 years. [38]  He did not use drugs in Samoa, but he did drink a lot of alcohol.[39] When he arrived in Australia he continued to abuse alcohol and was also using cannabis and dealing drugs.[40]  He told the Tribunal that he was making a lot of money dealing drugs, which included heroin, cannabis and ‘party drugs’.[41] He claimed he made $300,000 per fortnight dealing these drugs over a period of about four months.[42]

    [38] Transcript of proceedings dated 6 July 2021, 17.

    [39] Transcript of proceedings dated 6 July 2021, 17-18.

    [40] Transcript of proceedings dated 6 July 2021, 22.

    [41] Transcript of proceedings dated 6 July 2021, 23.

    [42] Transcript of proceedings dated 6 July 2021, 23.

18. The Applicant told the Tribunal he suffered with mental health issues in New Zealand and Samoa.[43]  He attempted to commit suicide on six occasions ‘in the car’.[44]  His girlfriend died in an accident in Australia on 16 December 2019.  He told the Tribunal that they were both intending to commit suicide and he was standing in the middle of the road and heard a bang, and looked up and saw that she had been hit by a car.[45]  After her death, the Applicant’s mental health deteriorated, and he was admitted to Penrith Mental Health Hospital on three occasions.[46]

    [43] Transcript of proceedings dated 6 July 2021, 16

    [44] Transcript of proceedings dated 6 July 2021, 17.

    [45] Transcript of proceedings dated 6 July 2021, 25.

    [46] Transcript of proceedings dated 6 July 2021, 25.

    Criminal history in Australia

19. The Applicant’s criminal history in Australia is set out in his National Criminal History Check dated 2 December 2020.[47]

    [47] Exhibit R1, G3, 48-50.

20. On 19 November 2020, the Applicant pleaded guilty to, and was convicted of, the offences Custody of a knife in a public place, Affray, Armed with intent to commit indictable offence, Stalk/intimidate intend fear physical etc harm and Remain on inclosed land not presc premises w/o lawful excuse. For these offences, other than Remain on inclosed land not presc premises w/o lawful excuse, the Applicant was sentenced to an aggregate term of 18 months’ imprisonment, with a non-parole period of 12 months’ imprisonment.

21. The circumstances surrounding these offences are detailed in the sentencing remarks of Magistrate van Zuylen dated 19 November 2020.[48]  On 18 June 2020, the Applicant was released from Penrith Mental Health Hospital. He was released after he had thrown chess pieces at hospital guards after hospital staff refused to let him take his property to his room.  The Applicant told the Tribunal that after he left the hospital he returned home to where he was staying with his foster parents.[49]

    [48] Exhibit R1, G3, 52; Exhibit R2, SG7, 700-702.

    [49] Transcript of proceedings dated 6 July 2021, 26.

22. At 2.00pm the next day, 19 June 2020, the Applicant attended the Colyton High School, armed with a 25cm steak knife. He was not a student at this school. His intention in attending the school with the knife was to cause injury and fear to a student named ‘L’. L and the Applicant’s brother had, according to the Applicant, an argument while playing a videogame and had threatened each other.  The Applicant was sighted with the knife on school grounds by staff members and the school went into the lockdown.  The Applicant walked around the school, kicking bins and classroom doors and issuing threats to L, including a threat that he would kill him.  Police attended the school and convinced the Applicant to drop the knife. The Applicant was arrested and he was not granted bail.  He told the police that ‘he wanted to kill [L], who had been threatening his little brother whilst he was in hospital’.[50] He stated that he had never met L and didn’t know what he looked like.

    [50] Exhibit R1, G3, 11.

23. The Applicant told the Tribunal that he went to the school because L was bullying his 12 year old brother and ‘sending threats that he was going to stab him.’[51] He said that he went to the school because he ‘was going to kill him’.[52]  He agreed he was asked to leave the school by a staff member, but he did not listen, and after the school went into lockdown he continued to walk around the school looking for L and yelling out threats.[53]

    [51] Transcript of proceedings dated 6 July 2021, 27.

    [52] Transcript of proceedings dated 6 July 2021, 28.

    [53] Transcript of proceedings dated 6 July 2021, 28.

24. In his sentencing remarks dated 19 November 2020, Magistrate van Zuylen commented on the seriousness of the Applicant’s offending:

    He knew that his actions would cause fear to people at school but he was just so angry he just wanted to get it done. It would not stop until it was done, inferring he would continue to seek [L] to seriously assault him.[54]

    …

    … the Court regards the taking of a knife on to school grounds to exact retribution or threats or whatever with intent to harm or threaten, or to intimidate [L]when he believed he could recognise him, that he walked into a school of possibly a thousand students, ranging in ages from 12 to 17, the risk of him simply deciding in his heightened state with a knife, taking action against someone who he thinks is [L], is just appalling. It is terribly, terribly serious.[55]

    [54] Exhibit R1, G3, 52.

    [55] Exhibit R1, G3, 53.

25. The Court was of the view that there was no other alternative than a sentence of full-time imprisonment.[56]

    [56] Exhibit R1, G3, 54.

    Psychological assessments

26. Magistrate van Zuylen’s sentencing remarks make reference to a mental health report before the Court dated 22 June 2020 from Ms Allen in which she reported that the Applicant ‘presents as a person with low threshold for frustration and stress’ who ‘struggles with managing his anger and emotional pain caused by the tragedy of his girlfriend’s death.’[57] The Applicant’s ‘behaviours are intensified by alcohol and drugs.’  Ms Allen’s clinical impression of the Applicant ‘indicated alcohol dependence and cannabis abuse, adjustment disorder, depressed moods, and self-harm behaviours.’[58]

    [57] Exhibit R1, G3, 53.

    [58] Exhibit R1, G3, 12.

27. The Applicant was admitted into the Acute Crisis Management Unit of Long Bay Correctional Centre on 29 August 2020. A record by Ms Erin Brissett, Acting Senior Psychologist dated 11 September 2020 notes:

    Mr Vaea was admitted to the ACMU from Bathurst CC due to ongoing engagement in self injurious behaviours. He reportedly has a history of attempting self-strangulation, ingesting glass / razors / chemicals, biting himself, head-banging, punching walls and head-stands. Further he engages in threats to harm himself.[59]

    [59] Exhibit R2, SG6, 133.

28. The Applicant told the Tribunal that while he was in gaol, he saw Ms Brissett twice a week and a psychiatrist once a week. He also was visited weekly by a chaplain. Ms Brissett organised for him to attend a program called ‘Connect’.[60]

    [60] Transcript of proceedings dated 6 July 2021, 30.

29. While he was in gaol, the Applicant was given medication for his depression and psychosis, Avanza and Zyprexa, as well as sleeping pills.[61]  He told the Tribunal that he took the medication given to him because he had to because he was ‘hearing voices’.[62]  Since he left gaol he has continued to take his medication.

    [61] Transcript of proceedings dated 6 July 2021, 30.

    [62] Transcript of proceedings dated 6 July 2021, 31.

30. In a discharge summary in relation to the Applicant dated 18 May 2021, Ms Brissett recorded the following:

    During his time within the ACMU, Mr Vaea engaged in multiple instances of self-injury / suicide behaviours (both observed by staff and self-reported) including punching walls, head-banging, oral ingestion of cleaning products, self-strangling, causing multiple superficial cuts to his limbs / trunk and reporting threats / thoughts / intent to self-injure / suicide.  More recently however, he has maintained nil immediate thought / intent to harm himself and guaranteed his safety from himself. He has however remained ambivalent with regard to his ability to guarantee his safety from himself at release from custody, and return to New Zealand, however during the most recent assessment (13/05/2021 & 18/05/2021) he stated he felt these thoughts were "far away from my head" and he held no thought / intent to harm himself at his release and return to New Zealand.

    Mr Vaea's self-injury / suicide behaviours have primarily appeared to function to express his anger and regulate his affect / distress (in response to perceptual disturbance and flashbacks, poor interpersonal interactions and situational stressors leading to thoughts and feelings of being rejected, abandoned, provoked; guilt, anger, sadness, hopelessness etc.), reduce social distance and enhance social approval (e.g. reported feeling ignored; "the boys were playing up so I went along") and to meet his perceived needs (including access to medication "if you don't bring it, I'm just going to do something", particular placements and property). More recently, there has also been evidence to suggest it has functioned as a form of sensation seeking, as he reported 'boredom' precipitating some events.[63]

    [63] Exhibit R2, SG6, 342.

31. The Applicant was asked in cross-examination about his mental health in gaol.  He agreed there were days that it was not very good and days when he felt better.[64]  In April 2021, during a phone call with his foster family he threatened self-harm, and he later called the Mental Health Hotline and threatened he was going to stab himself.[65]  He told the Tribunal that he meant the threats he made when he was speaking to his family.[66] He agreed that in early May 2021 he punched a metal fence.[67]

    [64] Transcript of proceedings dated 6 July 2021, 32.

    [65] Exhibit R2, SG6, 328; Transcript of proceedings dated 6 July 2021, 33-34.

    [66] Transcript of proceedings dated 6 July 2021, 34.

    [67] Exhibit R2, SG6, 332.

    Behaviour in gaol and immigration detention

1. During his incarceration in gaol, the Applicant committed a number of disciplinary offences, being disobey direction (five counts), possess offensive weapon or instrument (two counts), avoid correctional centre routine, intimidation (two counts), failing to comply with a correctional centre routine and obstructing a correctional officer.[68]

   [68] Exhibit R1, G3, 58; Exhibit R2, SG6, 354-358.

2. The Applicant was questioned about these offences during cross-examination at the hearing.  He agreed that on 18 August 2020 he drank toilet cleaner and was taken for assessment by the health staff. On the way back to his cell, he refused to hand over a pen he was holding in his hand.[69]  For this he was charged with the offence of disobey direction.  The Tribunal questioned the Applicant about whether he was hospitalised following the incident and he said he went to hospital for a couple of hours. He said that he drank the toilet cleaner because ‘the boys were just telling me what to do, so, I just listened to them.’[70]

   [69] Transcript of proceedings dated 6 July 2021, 36.

   [70] Transcript of proceedings dated 6 July 2021, 37.

3. On 22 October 2020, the Applicant feigned chest pain and was taken to another area of the prison where he was assessed by a nurse.[71] After he had seen the nurse he ran out and had to be chased and stopped and returned to his cell by correctional staff using force. He agreed that he was aggressive with the staff and had to be handcuffed.  He said that he acted this way because the officers who sought to restrain him were Indian, and he ‘hate[s] them so much’ because the woman who killed his girlfriend is Indian.[72]

   [71] Transcript of proceedings dated 6 July 2021, 37.

   [72] Transcript of proceedings dated 6 July 2021, 37-38.

4. On 27 October 2020, the Applicant was aggressive at the time of the afternoon lock in. He was questioned about this incident during cross-examination and said that one of his fellow inmates ‘was having a hard time’ and ‘refused to go in’ so he stayed out with him.[73] The officers used force on them both and sent them to their cells.[74]

   [73] Transcript of proceedings dated 6 July 2021, 38.

   [74] Transcript of proceedings dated 6 July 2021, 38.

5. On 3 November 2020, the Applicant was charged with the offence of intimidation and had to spend five days in the cells.[75] He agreed that the incident occurred when he had an interview with two members of the risk management team, including a nurse. He took out a pouch of tablets and was asked about them.  He then threw a table and chair at them both. He did this because the night before the interview the same nurse had thrown a cup of water at his door when he was giving the Applicant his medication and so he ‘got him back’.[76]

   [75] Exhibit R2, SG6, 188.

   [76] Transcript of proceedings dated 6 July 2021, 39-40.

6. On 7 November 2020, the Applicant was in possession of a plastic knife and refused to hand it to a corrections officer, who had to use force on the Applicant to take it from him.[77]

   [77] Exhibit R2, SG6, 631-632; Transcript of proceedings dated 6 July 2021, 40.

7. On 23 November 2020 the Applicant climbed up on the roof after he was told by ‘one of the boys’ to do so.[78] He was grabbed by one of the officers and ‘then the boys jumped him’ and punched one of the officers and they ‘had a brawl’.[79]  Following this incident, he was classified as a C grade prisoner for three months.[80] He agreed that just before this incident he called one of the corrections officers an ‘Indian dog’ and tore a strip of his prison greens and wrapped it around his hands and threatened to bite him.[81]

   [78] Transcript of proceedings dated 6 July 2021, 40

   [79] Transcript of proceedings dated 6 July 2021, 40

   [80] Exhibit R2, SG6, 367-368; Transcript of proceedings dated 6 July 2021, 40

   [81] Transcript of proceedings dated 6 July 2021, 41.

8. On 31 May 2021, the Applicant was charged with two counts of possessing an offensive weapon or instrument and disobeying a direction and received a reprimand and caution.[82] This incident involved the Applicant making a ‘shiv’ from a pencil ‘for the boys’.[83] He told the Tribunal that he made shivs ‘every night’ so that when a new person comes to the ACU he could ‘threaten them’ and say, ‘if he messes with the boys I’ll stab him just like that’.[84] He confirmed that he meant he would kill the person when he made these threats.[85]

   [82] Exhibit R2, SG6, 310; Transcript of proceedings dated 6 July 2021, 41.

   [83] Transcript of proceedings dated 6 July 2021, 41.

   [84] Transcript of proceedings dated 6 July 2021, 41-42.

   [85] Transcript of proceedings dated 6 July 2021, 42.

9. The Applicant was asked whether he used drugs in prison, and he said he only used bupe. He would get it through the officers every Friday.  He said that drug dealers would pay the officers on the outside and then it was brought into the prison.  He agreed he was keeping in contact with drug dealers when he was in prison as he had a phone in his cell at Silverwater.[86]

   [86] Transcript of proceedings dated 6 July 2021, 43.

   Remorse and responsibility for offending

10. A sentencing report dated 19 November 2020 reported that the Applicant:

    demonstrated a poor attitude towards his offending behaviour, boasting about his affiliations with organised crime and outlaw motorcycle club gangs, also, about committing the offences in order to send a message. He said he was standing up for his younger brother. He blamed his mental health for his behaviour.[87]

    [87] Exhibit R1, G3, 53.

11. An entry dated 19 May 2021 in the Long Bay Correctional Centre Parole Unit records:

    He stated that he did not feel right (MH) at the time. The offender indicated that he has felt more stable in gaol now he is taking medication. Joseph conveyed his remorse for his offending and that he was sorry to the victims.[88]

    [88] Exhibit R2, SG6, 347.

    Rehabilitation

12. While in custody, the Applicant participated in the Health Survival Tips program.  During cross-examination he was asked whether he undertook any study or courses in gaol.  He told the Tribunal that he did not do so because he was told he was unable to because his visa is cancelled.[89]

    [89] Transcript of proceedings dated 6 July 2021, 35.

    Family and friends in Australia

13. In his Personal Circumstances Form dated 19 January 2021, the Applicant wrote that his foster parents reside in Australia and he also has 150 aunts and uncles and 30 cousins who reside in Australia.[90]  He told the Tribunal that he has a brother who lives in Mount Druitt and three little ‘brothers’ and three little ‘sisters’ who are not his siblings but to whom he is related.  He also has a good friend, named ‘P’ who is aged 16 years.[91]

    [90] Exhibit R1, G3, 42.

    [91] Transcript of proceedings dated 6 July 2021, 51.

    Family in New Zealand

14. The Applicant’s grandparents live in New Zealand but they plan to relocate to Australia in December 2021.[92]  He has an auntie and a step-sister who he is close to in New Zealand but is not close to any other relatives.[93]  His auntie’s house however has been assessed by PARS as unsuitable for him to live in because there is overcrowding and drug and alcohol use.[94]  He also is unable to live with his step-sister and he does not get along with her parents.[95]

    [92] Transcript of proceedings dated 6 July 2021, 47-48.

    [93] Transcript of proceedings dated 6 July 2021, 47-48.

    [94] Transcript of proceedings dated 6 July 2021, 48.

    [95] Transcript of proceedings dated 6 July 2021, 48.

    Impediments on return

15. In his Personal Circumstances Form dated 19 January 2021, the Applicant wrote that he has concerns about returning to New Zealand due to his family’s associations with gangs and his fears that he will be coerced into criminality and forced to join a gang.[96]  He wrote that he will experience hardship upon returning to New Zealand, including being forced to live with his estranged stepmother who will make him ‘join gang related crime, robberies, drugs, and murder.’ [97] He fears for his life and would kill himself.[98]

    [96] Exhibit R1, G3, 32.

    [97] Exhibit R1, G3, 32.

    [98] Exhibit R1, G3, 32.

16. During cross-examination, the Applicant was asked about his fears of being forced to join a bikie gang in New Zealand. He said that the bikie gangs in New Zealand force their members to do things that they don’t want to do.[99]

    [99] Transcript of proceedings dated 6 July 2021, 51.

    Support on return to New Zealand

17. The Applicant was supported at the hearing by Ms Fifita Latu, a representative of PARS in Auckland. According to its website, PARS

    is a charitable organisation that seeks to create a society of inclusiveness, unity and fairness, in which all individuals are valued, treated with dignity, and empowered to achieve their potential. PARS works holistically with people who are at risk of, or are already engaging with, the justice system, including people who are about to be or have already been released from prison, deportees, youth at risk of offending, and their whānau.

    We provide a range of housing, employment, wellbeing, education, cultural identity, mentoring and whānau services at a critical time in their transition back into society.[100]

    [100] People at Risk Solutions, <

18. Ms Latu told the Tribunal the Applicant is receiving assistance from PARS, including providing him with accommodation, food and shelter, and assistance for his mental health issues and substance abuse issues.[101]

    EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

    [101] Transcript of proceedings dated 6 July 2021, 63.

    1)Does the Applicant pass the ‘character test’?

19. In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 2 December 2020 regarding his criminal convictions and sentences. This report records that on 19 November 2020 the Applicant pleaded guilty to, and was convicted of, the offences Custody of a knife in a public place, Affray, Armed with intent to commit indictable offence, Stalk/intimidate intend fear physical etc harm and was sentenced to an aggregate term of 18 months’ imprisonment, with a non-parole period of 12 months’ imprisonment.

20. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of subsection 501(3A)(a) and subsection 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: subsection 501(7)(c). The Tribunal is also satisfied, for the purposes of subsection 501(3A)(b) of the Act, that on 9 December 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.

21. Having found that the Applicant does not satisfy the character test, the Tribunal finds that subsection 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.

    2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

22. In determining whether pursuant to subsection 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.

    PRIMARY CONSIDERATIONS

    Primary Consideration 1 – Protection of the Australian community

23. Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:

    a)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia; and

    b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.

24. Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a)       Nature and seriousness of the Applicant’s conduct to date

25. Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:

    (a)  without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction   for an offence or a sentence imposed;

    (b)  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)…

    (ii)…

    (iii)…

    (iv)…

    (c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    (e) the cumulative effect of repeated offending;

    ...

26. Having regard to the factors in paragraphs 8.1.1(1)(a)(i) and (ii) of the Direction, the Tribunal finds that the offences for which the Applicant was convicted on 19 November 2020 are very serious. The Applicant intended to use, and threatened to use, extreme violence against a minor in response to an argument between that minor and his brother. The weapon in the Applicant’s possession at the time of the offending was a large knife which, if used, could have caused serious injury if not death to a victim. The Applicant conceded in his evidence that his intention in attending the school in possession of this knife was to kill the minor he went there to harm.  His actions placed not only the minor, but all the children and staff at Colyton High School at risk of serious physical harm.  As Magistrate van Zuylen stated in his sentencing remarks, the Applicant’s actions on 19 June 2020 were ‘just appalling’ and ‘terribly, terribly serious.[102]

    [102] Exhibit R1, G3, 53.

27. The Applicant’s serious mental health issues were likely to have played a part in his offending on this date, particularly as he had been released from the Penrith Mental Health Hospital the day before. However, this does not provide an excuse or justification for his serious behaviour that placed innocent children and adults at risk of serious harm.

28. The disciplinary offences committed by the Applicant while he was prison, viewed in their totality, are also serious. They indicate that the Applicant’s offending in June 2020 was not a ‘one-off’ instance of aggressive behaviour, rather that he has an ongoing disrespect for the law and for authority. The offences of possess offensive weapon or instrument (two counts), intimidation (two counts) and obstructing a correctional officer, involve behaviour where the Applicant used, intended to use, or threatened to use, violence against corrections staff or other inmates.  These incidents include throwing a chair and table when he became frustrated with corrections staff, and making shivs that he intended to use to threaten, if not kill, other inmates.

29. Having regard to paragraph 8.1.1(c) of the Direction, the custodial sentences imposed on the Applicant by the courts for his offending are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. As noted above, the sentences imposed on the Applicant for his criminal offending in June 2020 were in the opinion of Magistrate van Zuylen of such a nature that there was no other alternative than to impose a sentence of full-time imprisonment.[103]

    [103] Exhibit R1, G3, 54.

30. In relation to the factors in paragraph 8.1.1(1)(d) and (e), the cumulative effect of the Applicant’s offending in June 2020 together with his disciplinary offences in gaol, although not significantly increasing in seriousness, discloses his general disregard for the law and authority.

31. On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

32. Paragraph 8.1.2(1) of the Direction states:

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

33. Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:

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

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

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

    (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

34. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that if the Applicant were to commit future threats or acts of violence, this could have serious physical and psychological consequences for his victims.  The Applicant has made serious threats of violence, including that he would kill individuals whom he considers pose a threat to him or his friends or family. On the basis of the evidence before it, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.

35. Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, and nature of the harm to individuals or the Australian community in accordance with paragraph 8.1.2(2)(b) of the Direction, the evidence demonstrates that the Applicant has serious, unresolved mental health issues.  He claims to have suffered from self-injurious and suicidal behaviours since the age of 12 or 13 years.  His mental health appears to have deteriorated significantly after his girlfriend was killed in a motor vehicle accident in December 2019.  During his period of imprisonment, the Applicant was on a medication regime and received regular psychological consultations. However, the case notes from Corrections NSW disclose that he continued to regularly display mentally unstable behaviour and a tendency to self-harm.

1. As the 25 September 2020 report from the Applicant’s psychologist, Ms Erin Brissett, records, although the instances and severity of the Applicant’s attempts at self-harm decreased in the latter months of his time in gaol, he remains at a chronic risk of self-harm and suicidal behaviours. Ms Brissett notes that there is ongoing evidence of ‘impulsivity, impressionability, deficits in hopeful coping/emotion regulation/problem solving and interpersonal effectiveness, low frustration/distress tolerance and situational stressors’.[104]

   [104] Exhibit R2, G6, 147.

2. Although the evidence demonstrates that frequency and severity of the Applicant’s attempts at self-harm have recently decreased, it is clear that he has not overcome his longstanding mental health issues.  There is no evidence before the Tribunal to support a finding that if the Applicant were to return to live in Australia, he would seek ongoing treatment and counselling for these issues, and maintain the medication regime which he followed while imprisoned. The presence of these ongoing mental health issues heightens the risk of the Applicant responding violently to distressing and emotional situations in the future.

3. The Applicant has a history of substance abuse from a young age which has not abated while he was incarcerated. The Applicant completed the Health Survival Tips program, however, there is no evidence of him undertaking any other program to address his substance abuse problems, or of any other efforts to cease cannabis use and use alcohol responsibly. His evidence is that while in prison he used bupe every Friday, which indicates that he continues to have a drug habit.

4. The Applicant has claimed to be affiliated with members of bikie gangs and organised crime while in the Australian community, and he told the Tribunal that he continued to have contact with a drug dealer while he was in prison. If these claims are true, these ongoing links with criminal offenders heighten the risk of him reoffending in the Australian community.

5. In relation to potential protective factors that may lessen the likelihood of the Applicant reoffending, the Applicant has had only limited employment in Australia, including working as a fishmonger for one month and as a furniture removalist for two months.  The Applicant did not give evidence of any other work history in either New Zealand or Samoa, or work while in prison. His evidence is that he did not complete any courses while incarcerated that may assist him in obtaining employment.

6. The Applicant claims that his foster parents would be a substantial protective influence, as they would ‘provide [him] with…love and support’ and ‘[assist him] with keeping…out of trouble’.[105] However, there is no evidence before the Tribunal that supports the Applicant’s claims. The Applicant’s foster parents did not provide any written statements of support or oral evidence at the hearing to confirm that they would be willing to house and support him if he lived in Australia. In any event, even if the Applicant were to live with, and receive support from, his foster parents, this does not support a finding that this may reduce the likelihood of him reoffending, as the Applicant’s evidence is that he was living with his foster parents in June 2020 when he committed the serious offences for which he was convicted.

   [105] Exhibit R1, G3, 43.

7. The Tribunal notes that the Applicant has recently expressed his remorse for the offences he has committed and that he is sorry for his actions.

8. On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate.  In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, specifically making threats of or engaging in acts of violence, the Tribunal finds that this risk is unacceptable.

9. For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.

   Primary Consideration 3 – The best interests of minor children in Australia affected by the decision

10. Paragraph 8.3(1) of the Direction requires decision-makers to make a determination as to whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).

11. In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:

    (a)  The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)  The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)   The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)  The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;

    (e)  Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)  Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;

    (h)  …

12. The Applicant has had regard to the interests of the Applicant’s minor aged cousins, whom he considers to be his brothers and sisters, including the ‘brother’ whom he claimed was threatened by L, leading him to commit the criminal offences for which he was convicted in November 2020. There is limited evidence before the Tribunal of the ages of these children, with the exception of the Applicant’s ‘brother’, who is now aged 13 years.

13. Having regard to the factors in paragraph 8.3(4)(a), (d) and (e) of the Direction, the Applicant has not made any specific claims in relation to his minor aged cousins including the nature and duration of his relationship with them and how they may be impacted if he were unable to return to Australia. These relationships are non-parental and there is no evidence that the Applicant has had any caring responsibilities with respect to them or would have such responsibilities in the future.

14. Having regard to the factors in paragraph 8.3(4)(b) and (c), the Tribunal has had regard to the evidence that the Applicant committed the offences for which he was convicted in response to threats made by the minor aged victim to his ‘brother’.  There is no evidence before the Tribunal of the impact of the Applicant’s offending on his ‘brother’ or his other cousins, however, if he were to re-offend in a violent manner in the future, he would not set a good example or be a good role model for these children.

15. On the basis of the evidence before it, the Tribunal has given limited weight to the impact on these children of the Applicant being returned to New Zealand, particularly in circumstances where they will be able to remain in contact with him via phone and video calls.

16. Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that Primary Consideration 3 is of neutral impact in assessing the impact on the decision to revoke the Mandatory Visa Cancellation Decision.

    Primary Consideration 4 – The expectations of the Australian community

17. Paragraph 8.4 of the Direction states:

    1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    2)    In addition, 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 is 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)…

    (b)…;

    (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 …;

    (d)…

    (e)…

    (f)…

    (3)  The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)  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.

18. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:

    Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[106] 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.[107]

    However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[108] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[109]

    [106] Charlesworth J at [66]; Stewart J at [91].

    [107] Charlesworth J at [67]; Stewart J at [104].

    [108] Charlesworth J at [76].

    [109] Stewart J at [97].

19. The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[110] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.

    [110] Charlesworth J at [77].

20. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, particularly his acts of threatened and intended violence against a minor, and the unacceptable risk of him reoffending, the Tribunal finds that Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision.

    OTHER CONSIDERATIONS

21. While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’

22. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:

    ... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

23. The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.

    Extent of impediments if removed from Australia

24. The Direction states in paragraph 9.2:

    (1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:

    (a)  The non-citizen’s age and health;

    (b)  Whether there are substantial language or cultural barriers; and

    (c)   Any social, medical and/or economic support available to them in that country.

25. Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 22 years of age and is generally in good physical health.  He suffers from severe mental health issues and a drug habit which will require ongoing treatment in New Zealand. If the Applicant requires mental health treatment or substance abuse counselling in New Zealand, he will be able to readily acquire it as a New Zealand citizen. The evidence before the Tribunal is that since his return to Auckland, the Applicant is receiving support for his mental health issues from PARS.

26. Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers in New Zealand, as he grew up and lived there for most of his life, other than the short periods he resided in Samoa and Australia.

27. Having regard to paragraph 9.2(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant has worked as a fishmonger and furniture removalist in Australia and would likely find similar employment in New Zealand.

28. The evidence before the Tribunal is that the Applicant’s grandparents are planning to relocate to Australia at about the time his six months parole period expires.  It therefore is unlikely that the Applicant will be able to live with or to receive support from them in the long term. Ms Latu told the Tribunal that at least for the short to medium term, the Applicant will have accommodation available to him through PARS, as well as assistance in planning his future, including finding stable living arrangements.

29. The Applicant’s evidence is that his father is presently serving a long term of imprisonment in Tuvalu, he would be forced to live with his stepmother who would make him join his father’s bikie gang, and he fears for his life in New Zealand.  The Tribunal finds that there is no credible evidence that the Applicant is at risk of being forced to join a bikie gang by his family members. The Applicant cannot be forced to live with his stepmother, and his aunt’s home has been assessed by PARS as unsuitable for him to live in because of overcrowding and drug and alcohol use.

30. Having regard to the evidence before it, the Tribunal finds the Applicant will face hardship re-establishing himself New Zealand.  He has only a few family members in New Zealand and he will find it difficult to find stable accommodation and employment, however, he will be greatly assisted in doing so with the support and resources made available to him by PARS.

31. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs marginally in favour of the revocation of the Mandatory Visa Cancellation Decision.

    Impact on victims

32. The Direction states in paragraph 9.3:

    1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness

33. There is no evidence before the Tribunal of the views of the other victims of the Applicant’s criminal offending.

34. On the basis of the evidence before it, the Tribunal finds that this consideration is of neutral impact in assessing the impact on the Applicant’s victims of a decision to revoke the Mandatory Visa Cancellation Decision.

    Links to the Australian community

35. Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.

    Strength, nature and duration of ties to Australia

36. Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:

    1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.  In doing so, decision-makers must have regard to:

    (a)  how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community

    (b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant arrived in Australia in March 2019 and has lived here for a period of almost two and half years. However, he committed serious offences in June 2020 and was then incarcerated until his voluntary departure from Australia in June 2021. He made a limited contribution to the Australian community during his time in Australia, with the exception of a few months’ work as a fishmonger and removalist.

2. In relation to the factors in paragraphs 9.4.1(1) and 9.4.1(2)(b) of the Direction, the evidence before the Tribunal is that the Applicant’s foster parents live in Australia, and he claims to have 150 uncles and aunts and 30 cousins who also reside here. Whereas the Applicant claims that he has a good relationship with his foster parents, there is no evidence before the Tribunal from them or any of his other relatives confirming the nature of their relationship with the Applicant or the impact that his return to New Zealand may have on them.  The Tribunal cannot therefore be satisfied that the Applicant’s family members, who are Australian citizens or have a permanent right to remain in Australia, will be adversely impacted if the Applicant’s visa is not reinstated.

   Impact on Australian business interests

3. The Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.

4. On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration does not weigh in favour of a decision to revoke the Mandatory Visa Cancellation Decision.

   CONCLUSION

5. In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly the threats of violence he made against a minor. The moderate risk of him committing future criminal offences, and the nature and seriousness of the harm his re-offending would cause to his future victims is such that the Tribunal finds that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

6. Primary Consideration 3 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s minor aged cousins that he remain in Australia.

7. Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia.

8. In regard to the relevant Other Considerations, only the impediments the Applicant will face on return to New Zealand weigh in favour of revocation of the Mandatory Visa Cancellation Decision.

   DECISION

9. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked. The Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 6 August 2021

Date(s) of hearing:	6 July 2021
Applicant:	In person
Solicitors for the Respondent:	Mr K Sypott, Australian Government Solicitor