Vunipola and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Vunipola and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2825 (5 September 2023)
Division:GENERAL DIVISION
File Number:2023/4177
Re:Sione Aapa Ki Sia Vunipola
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:5 September 2023
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 13 June 2023, is affirmed.
............[Sgd]............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include assault occasioning actual bodily harm, robbery and possess prohibited drugs – Applicant is a 34 year old citizen of New Zealand who arrived in Australia as a 10 year old child – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor children nieces and nephews – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to New Zealand – impact on Australian business interests – no change to the way that New Zealand citizens are assessed in Direction No 99 – Reviewable Decision affirmed
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
5 September 2023
BACKGROUND

The Applicant is a 34-year-old man who was born in New Zealand. He came to Australia to reside on 17 October 1999 with his mother and two older sisters when he was 10 years old (G22/97).
On 2 September 2022, the Applicant was sentenced in the Blacktown Local Court to an aggregate sentence of two years commencing on 1 June 2022 to 31 May 2024 with a non-parole period of nine months for the offences of “Take & drive conveyance w/o consent of owner -T2” and “Robbery – T1” (G4/28-29).
On 25 October 2022, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G23/98).
The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 26 October 2022 (G11). He also submitted a personal circumstances form containing submissions (G12). He subsequently provided numerous character references in support (G13-G20).
However, on 13 June 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/13). This is the Reviewable Decision currently before me.
The Reviewable Decision (and documents pertaining to the decision) was hand delivered to the Applicant on 13 June 2023 (G25/129). On 15 June 2023 he lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2), which was within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 13 June 2023, meaning that I must hand down a decision on or before 5 September 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 16 and 17 August 2023.
The Applicant was self-represented. The Respondent was represented by Ms E Tattersall of Sparke Helmore Lawyers.
The hearing took place in person, however Ms Tattersall appeared by Microsoft Teams due to being interstate.
The Applicant made submissions and gave evidence at the hearing in person on the first and second day.
The Applicant’s mother, father, fiancée Pauline, and older sisters Aroma and Pilimilose, gave evidence on the second day of the hearing in person. The Applicant’s family members travelled to Perth from Sydney for the hearing so they could be at the hearing in person. The Applicant’s mother, father and Pauline gave their evidence with the assistance of a Tongan interpreter.
I admitted the following documents into evidence at the hearing:
(a)Applicant's summary of submissions dated 2 August 2023 (Exhibit A1);
(b)letter from the Applicant titled “Sincere Apology and Request for Understanding” (Exhibit A2);
(c)letter from the Applicant’s father, Aisake Vunipola, incorrectly dated 20 July 2027 (Exhibit A3);
(d)letter from the Applicant’s sister, Aroma Vunipola, dated 30 June 2023 (Exhibit A4);
(e)letter from the Applicant’s fiancée, Pauline Tupou, dated 26 June 2023 (Exhibit A5);
(f)letter from the Applicant’s uncle, Pita Pua, dated 24 June 2023 (Exhibit A6);
(g)letter from Reverend Kaufusi, from the Applicant’s church, undated (Exhibit A7);
(h)letter from Pauline’s cousin, Lisa Valoa, undated (Exhibit A8);
(i)letter from the Applicant’s mother, Toeumu Vunipola, undated (Exhibit A9);
(j)list of family and friends (Exhibit A10);
(k)business plan for “Sione Fitness” (Exhibit A11);
(l)two-page document titled, “DHARMA(Budhaism)” (Exhibit A12);
(m)article dated 1 February 2023 titled, “Immigration Minister orders changes to assessments for New Zealanders facing deportation” (Exhibit A13);
(n)bundle of course completion certificates (Exhibit A14);
(o)section 501 - G Documents, labelled G1-G25, comprising pages 1-129 (Exhibit R1 – for convenience I refer to these documents by their G numbers, for example, G1);
(p)“Summons Bundle”, labelled SB1-SB10, comprising pages 1-502 (Exhibit R2); and
(q)“Tender Bundle”, labelled TB1-TB2, comprising pages 1-17 (Exhibit R3).
The Respondent lodged an amended Statement of Facts, Issues and Contentions (SFIC) dated 11 August 2023 prior to the hearing.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(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. paragraph (6)(e) (sexually based offences involving a child); 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.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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 [sic] 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the aggregate sentence of two years imposed by the Blacktown Local Court on 2 September 2022 for the offences of “Take & drive conveyance w/o consent of owner -T2” and “Robbery – T1”.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
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.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
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;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant does not have a lengthy traffic/ driving history.
He has four traffic/ driving convictions as follows (the dates stated are Court dates).
(a)7 January 2015: “Drive, licence suspended under s 66 Fines Act – 1^st off” for which he was fined $500, and his licence was disqualified for three months. At the hearing the Applicant conceded that he had regularly driven to and from work while his licence was suspended.
(b)8 September 2021: “Use class A vehicle displaying altered number-plate” (for which he was fined $800), “Licence expired less than 2 years before – first offence” (for which he was fined $400), and “Use unregistered registrable Class A motor vehicle on road” (for which he was fined $500). At the hearing the Applicant admitted that he was abusing “ice” (methamphetamine) at the time of these offences and that “now and then” he would drive when under the influence of the drug.
He has appeared in Court for criminal offences on eight occasions:
(a)28 August 2008: “Destroy or damage property <=$2000-T2” for which he was fined $600, required to pay court costs of $73 and compensation of $245. This offence was committed on 2 August 2008.
The Applicant was at a party and an argument started between two groups of friends at the party. The argument moved outside to the carpark where the Applicant struck the windscreen of a car with a length of fence paling which caused it to crack (R2/66 and 248-249).
(b)14 November 2008: “Robbery in company-SI”. This offence was committed on 7 September 2007. The Applicant was sentenced to periodic detention of 36 months commencing on 21 November 2008 and concluding on 20 November 2011 and a non-parole period with conditions of 18 months commencing on 21 November 2008 and concluding on 20 May 2010. His release was subject to supervision to participate in alcohol addiction counselling and to undergo psychiatric/ psychological counselling. It is further noted on the Applicant’s criminal history that the Court “strongly recommended that the offender be provided alcohol & psychological counselling by a registered psychologist preferably of pacific islands background to address alcohol & family issues for an extended period”.
The Applicant and a co-accused were walking through a park when they encountered the 18-year-old male victim who was on his way home from work both on foot and also riding his skateboard. They approached the victim and demanded his mobile phone. The victim said he did not have one and the Applicant struck the victim once to the face with a closed fist. Both offenders took hold of the victim and forced him to the ground. The co-offender reached into the front pocket of the victim and removed the victim’s mobile telephone. The victim broke loose and ran away. The Applicant took the victim’s backpack which he later disposed of with its contents on the roof of a shed (R2/79-80).
(c)21 August 2009: “Assault occasioning actual bodily harm-T2”. This offence was committed on 19 September 2008. He was sentenced to eight months imprisonment commencing on 21 August 2009 and concluding on 20 April 2010 with a non-parole period with conditions of five months commencing 21 August 2009. His release was subject to supervision and “rehab[ilitation] opportunities for young man – special circumstances”.
The Applicant was on bail at the time of this offence (G6/38). He had been drinking with friends and drove with two co-accused to the victim’s house who they believed had damaged one of the co-offender’s vehicles. When they arrived, the victim approached their vehicle and asked them what they wanted. The first co-offender struck out at the victim, hitting him in the face. As the victim tried to defend himself, the Applicant and a second co-accused got out of the vehicle. The Applicant hit the victim in the rear of the head. This caused the victim to stumble, and the first co-accused started kicking and punching him. The victim fell backwards and hit his head. The Applicant and the first co-accused continued to strike the victim as he lay on the ground (R2/4).
(d)27 April 2012: “Assault occasioning actual bodily harm-T2”. This offence was committed on 31 December 2010. The Applicant was sentenced to 200 hours of community service and was ordered to pay court costs of $81.
The victim was about to cross the road when he was struck on the left side of his jaw. The victim did not see who struck him. The victim realised his front left tooth and the tooth next to it were chipped. Witnesses pointed out the Applicant as the perpetrator (R2/246).
(e)15 March 2013: “Refuse/fail to comply with direction under Part 14” (for which he was fined $200 and ordered to pay court costs of $83), “Resist officer in execution of duty-T2” (for which the Court imposed a bond, pursuant to a former version of s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), for 12 months supervision with probation service) and “Behave in offensive manner in/near public place/school” (for which he was fined $500). These offences were committed on 8 February 2013.
The Applicant and a friend became involved in an altercation in a pub with an unknown male and were asked to leave. The Applicant and another co-offender then followed the male and his friends after they left the pub. When police arrived at the pub, security informed them of the direction that the Applicant and his friend had travelled. When police located them, the co-offender confronted police but after he was threatened with being tasered stopped and sat on the curb. Police observed the Applicant to be intoxicated.
The Applicant was approached by police and became hostile towards them, frequently telling them to “fuck off”, challenging police to a fight (“if you want to go I’m ready”) and ignoring a direction to move on because he was attempting to walk in the middle of the street and was hindering the flow of traffic (telling police, “fuck off I’m going back to have another drink”). The Applicant’s sister and other unspecified family members were present and tried to get him to get into their car and leave. One of the police officers told the Applicant that it was his last chance and that he should leave or be arrested and placed his hand on the Applicant’s back.
The Applicant swung around to face the police officer and yelled, “fuck you”. The co-offender interjected his body between the Applicant and the police officer and raised his hand towards the officer, saying, “Don’t fucking touch him”. Fearing that the officer would be assaulted, the second officer sprayed the co-offender with capsicum spray and police attempted to get the co-offender, who was resisting police, onto the ground.
As this was occurring, the Applicant became hostile and was screaming at police, “Let’s fucking go cunts”. The first officer took hold of the Applicant’s arm to arrest him. The Applicant attempted to pull away causing the officer to take hold of him and pull him to the ground. The officer wrestled with the Applicant on the ground while the Applicant repeatedly yelled, “Lets fucking go, come on you cunts”. The police officer forced the Applicant to his stomach where he continued to resist arrest by holding his right arm to his chest whilst yelling out (R2/219-221).
(f)11 December 2020: “Possess prohibited drug” (for which the Applicant was fined $600). This offence was committed on 4 November 2020.
Police approached the Applicant who was standing next to a car in a car park. Police suspected he may be there to supply drugs. The Applicant was in possession of a glass pipe he said he used to smoke “ice” every day. He was also in possession of two clear resealable bags containing a clear crystalised substance. The bags were found to contain 0.7 grams of the drug (R2/42-43).
(g)2 March 2021: “Possess prohibited drug” (for which the Applicant was also fined $600). This offence was committed on 3 December 2020.
The Applicant was travelling in a car with three other persons when he was stopped by police. Police searched the vehicle and found 0.7 grams of ice. The Applicant admitted to police that he knew it was there and that it was his (R2/238).
(h)2 September 2022: “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2”. As mentioned above, the Applicant was sentenced to an aggregate sentence of two years imprisonment commencing on 1 June 2022 and concluding on 31 May 2024 with a non-parole period of nine months commencing on 1 June 2022 and concluding on 28 February 2023. These offences were committed on 26 August 2021.
The Applicant approached a 71-year-old elderly man in a car park, assaulted him and took the victim’s car keys out of his pocket. He then got into the victim’s car and drove away. The sentencing Magistrate emphasised that “it is not an assault and rob offence, it is a robbery simpliciter”.
Direction No 99 provides that certain types of offending should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). These offences include violent crimes. The Applicant’s 21 August 2009 and 27 April 2012 “Assault occasioning actual bodily harm-T2” offences clearly fall into this category. For example, when sentencing the Applicant on 21 August 2009, the sentencing Magistrate described the Applicant and his co-offender kicking the victim when he was on the ground as: “The extreme of cowardice”. The sentencing Magistrate described the offending as “senseless, drunken, extreme violence” (G6/38-39).
Direction No 99 also provides that crimes committed against government officials in the performance of their duties are “serious”. The Applicant’s 15 March 2013 conviction for “Resist officer in execution of duty-T2” which included wrestling with the officer on the ground to resist arrest, falls within this “serious” category.
The Applicant has also committed offences that are not themselves violent offences, but that have involved violence.
His 2 September 2022 conviction for “Robbery-T1” involved the Applicant assaulting an elderly man and stealing his keys and car. The sentencing Magistrate stated that, “the offending, in my view, falls above the mid-range of seriousness for this sort of offence” and that the “effect on the victim would have been considerable” (G5/34; R2/24). These comments further support a finding that the offending was serious.
The 14 November 2008 “Robbery in company-SI” offence involved the Applicant striking the victim to his face. I also note the sentencing Magistrate’s comment that “There was a vulnerable victim who was walking through a park alone late at night”. The sentencing Magistrate also described the offence as “a serious offence” (G7/51-52). These factors also lead me to conclude that it is appropriate to regard this offence as being serious.
The Applicant also has two convictions for “Possess prohibited drug” where he was in possession of a small quantity of methamphetamine (0.7 grams on each occasion). These offences appear to be related to his personal use of the drug and are far less serious than his offences involving violence. His first “Destroy or damage property <=$2000-T2” offence is at the less serious scale of offending because it is a property offence that involved a car windscreen being cracked when the Applicant hit it with a fence paling.
This Tribunal has often regarded driving offences as being serious. The Applicant’s driving offences which involve driving whilst suspended, when his licence had expired, and driving an unregistered vehicle with altered number plates are moderately serious because those laws were enacted to ensure the roadworthiness of vehicles and to ensure that unsafe drivers are not on the roads, to protect the safety of other road users. Of particular concern is the Applicant’s admission that he was driving under the influence of methamphetamine, even though he was never caught. Driving under such an impairment is reckless because it risks the lives and safety of other innocent road users and pedestrians, and therefore it should also be regarded as serious.
The Applicant has received numerous fines and has been given the opportunity of community supervision. This suggests that those offences (including his driving/ traffic offences, his drug possession offences and his “Destroy or damage property <=$2000-T2” offence) were of a less serious nature. For his first serious offence of “Robbery in Company-SI” the Applicant was sentenced to periodic detention, parole, and community supervision. Although he received only eight months imprisonment for his first “Assault occasioning actual bodily harm-T2” offence and a community service order for his second “Assault occasioning actual bodily harm-T2” offence, that does not alter the offences being serious because violent offences are objectively serious regardless of the sentence imposed (8.1.1(1)(c) of Direction No 99). His two-year aggregate sentence for the “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2” is indicative that the Court viewed these offences collectively as being sufficiently serious to impose a sentence of custodial imprisonment (para 8.1.1(1)(c) of Direction No 99).
The Applicant has been convicted of four driving/ traffic offences and 11 criminal offences committed over a 13-year period. The number of offences suggests some frequency of offending. However, there are some breaks in the Applicant’s offending including between December 2010 and February 2013, and November 2014 and November 2020. The Applicant’s most serious offences of “Assault occasioning actual bodily harm-T2” were committed in 2008 and 2010. His most recent offence of “Robbery-T1” (involving the elderly man being assaulted and his keys and car stolen) in 2021 can also be regarded as serious, and he received his lengthiest sentence of imprisonment for that offence. Overall, I find that there is a slight trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99).
The Applicant has had ten Court appearances for his offending, a sentence of periodic detention, supervision in the community and two custodial sentences of imprisonment. This would have placed some burden on the resources of police, corrective services, and the Courts. I find that there is likely to have been a moderate cumulative effect (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs (Department), including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of any such conduct before me.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. On 4 December 2009 the Department of Immigration and Citizenship (as it was then called) notified the Applicant that his visa was being considered for cancellation on character grounds. In a letter dated 1 April 2010, the Applicant was advised that a delegate of the Minister decided not to cancel the Applicant’s visa and gave him the following warning in bold letters (G21/94):
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
I note that some eight months after receiving this warning, the Applicant committed his second “Assault occasioning actual bodily harm-T2” offence on 31 December 2010 in an unprovoked attack where he struck a stranger who was about to cross the road.
The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant does not have a lengthy history, but he has committed serious violent offences as well as other offences that involved violence. There is a slight trend of increasing seriousness, a slight cumulative effect, and the Applicant offended with serious offences after he received a warning.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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.

Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
The harm that could result to members of the Australian community if the Applicant were to reoffend in a violent manner could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims.
Dishonesty offences, such as stealing and robbery offences, can cause psychological distress to victims and financial harms in the form of increased costs to the community including increased insurance premiums. Offences against property, including those involving property damage, can also result in financial detriment, and can also indirectly contribute to increased insurance premiums.
The Applicant also has several driving/ traffic convictions involving driving whilst unlicensed or suspended and driving an unlicensed vehicle. He has admitted to regularly driving to work whilst unlicensed and to driving under the influence of methamphetamine on numerous occasions, even though he was not caught by police. A primary purpose of road traffic and driving laws is the protection of road users. For example, prohibitions against driving whilst suspended exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against driving under the influence of alcohol and drugs ensure that innocent road users are not endangered. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 34-year-old man who, as I mentioned above, has been convicted of four driving/ traffic offences and 11 criminal offences committed over a 13-year period. Whilst he has committed a number of offences, there are some breaks in the Applicant’s offending including between December 2010 and February 2013, and November 2014 and November 2020 which suggest that he is capable of living in the community without committing any offences. The Applicant has been undeterred by fines. He has been given opportunities for rehabilitation and supervision in the community (including periodic detention, counselling, and supervision) and yet he has reoffended. Eight months after receiving a written warning that his visa may be reconsidered for cancellation if he were to commit further offences, the Applicant committed his second “Assault occasioning actual bodily harm-T2” offence on 31 December 2010. He was also undeterred by a prison sentence and went on to commit numerous further offences after his release, including the serious “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2” offences which resulted in another sentence of imprisonment. The Applicant’s first “Assault occasioning actual bodily harm-T2” offence was committed whilst he was on bail. Overall, this history suggests that there is a likelihood of future reoffending.
The Applicant was 19 years old when he committed his first offence of “Destroy or damage property <=$2000-T2”. The notes on the Applicant’s criminal history suggest that when sentencing the Applicant on 14 November 2008 and 21 August 2009 the Magistrates had considered the Applicant’s young age. The Applicant has not, however, just offended when he was a young man. His “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2” offences were serious offences committed when he was 32 years old. His two drug possession offences occurred when he was 31 years old. I am therefore not of the view that the Applicant’s offending was attributable to his young age and that his being older now is sufficiently protective.
The Applicant’s family members have, however, given evidence that he has changed. The Applicant’s father described his “remarkable transformation during his time of incarceration” (A3) because the Applicant is remorseful when he speaks to him on the telephone and does not believe he will commit another crime again (transcript/75). The Applicant’s sister, Aroma, referred to his “maturity” (A4). Pauline’s cousin referred to the Applicant’s “transformation” and to “profound changes” the Applicant has made in his life (A8). The Applicant’s mother referred to the Applicant having “demonstrated a genuine commitment to turning his life around” (A9). At the hearing she explained that he has apologised and is now involved with the church and the family (transcript/65). His sister, Pilimilose, stated that she has noticed a change in the way the Applicant talks to her and that, “he actually speaks out and tells us that he realises what he’s done. We’ve never heard that before” (transcript/90). This evidence suggests that the Applicant may have matured and that being in prison and detention may have had a deterrent effect on him.
The Applicant has had issues with drugs and alcohol which have contributed to his offending behaviour. His evidence was that all his offences were committed under the influence of drugs or alcohol (transcript/20, 36 and 50). He started drinking on weekends when he left school and would consume half a case of beer. His alcohol consumption also increased when he turned 18 when he would consume approximately 22 standard drinks in a sitting, which increased to 36 standard drinks by 2008 (transcript/53).
When he committed the “Destroy or damage property <=$2000-T2” offence the Applicant was drunk. At the time he committed the “Robbery in company-SI” offence “a 24-pack [of beer] was nothing” and he would drink until he could not remember anything (transcript/36). When he committed the first “Assault occasioning actual bodily harm-T2” offence, the Applicant and his friends were “really, really intoxicated” (transcript/39). He was “way over my limit” when he committed his second “Assault occasioning actual bodily harm-T2” offence which involved him punching a man crossing the road without any provocation (transcript/43). He was also intoxicated when he committed the offences that he was convicted of on 15 March 2013 which included the “Resist officer in execution of duty-T2” offence where he resisted arrest and wrestled with the police officer on the ground (transcript/44).
After that offence, the Applicant began to prefer methamphetamine to alcohol and his offending became connected to his drug use (transcript/50). When he committed the “Drive, licence suspended under s 66 Fines Act – 1^st off” offence he was abusing methamphetamine (ice) and he admitted that he would also drive under the influence of drugs (transcript/47). However, later in his evidence the Applicant stated that between 2015 and 2018 he was using MDMA on weekends, that he occasionally used cocaine when he could afford it, and that he first used ice at the end of 2019 or in early 2020 (transcript/51).
Leading up to the “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2” offences the Applicant had been on “a three, four-day bender of just smoking ice non-stop the whole week” and had not slept for approximately two days (transcript/49).
The Applicant’s evidence was that he realised that drugs were “a whole waste of time” when he went to prison (transcript/47) and that it had been “a while” since he “touched alcohol” (transcript/50). His evidence was that he stopped using methamphetamine just before he commenced his most recent prison sentence (transcript/50). He stated that he did not ever want to touch alcohol again and that he had realised that being on drugs was a “waste of life” (transcript/59). The Applicant appeared genuine in his desire to stop alcohol and drug use and his abstinence in prison and immigration detention may assist him to remain so in the community. However, his history of abusing drugs and alcohol for his whole adult life (and some of his later teenage years), may make it difficult for him to remain abstinent if he experiences stressors in the community.
The Applicant has stated that he is “genuinely remorseful” for his offending and the “pain and distress” that he has caused to his victims, family, friends, and law enforcement. He says that he takes “full responsibility” for his actions (A2). My impression was that the Applicant was genuinely remorseful and that he answered honestly when he was asked about his offences at the hearing. Sometimes he could not recall the details of the offending because of his level of intoxication when the offences were committed. He only denied one of the offences, “Use class A vehicle displaying altered number-plate”, saying he did not know the plates (on his mother’s car) had been altered or who had altered them. Overall, I thought that the Applicant did take responsibility for his offending. He also appreciates the strain that his situation has placed on his fiancée and other family members including his parents and his sisters, who together with the Applicant’s brother-in-law, travelled from New South Wales to Western Australia to support the Applicant at the hearing and to give evidence. His remorse, taking of responsibility and appreciation of the impact on his fiancée and family may be protective factors that could reduce the likelihood of future reoffending.
The Applicant also fears deportation to New Zealand where he has no friends or family. The prospect of permanent separation from his fiancée, parents, sisters and other family members in Australia, the consequence that he is unlikely to be able to return to Australia, and the knowledge that further offending will place him in the same position again is likely to deter the Applicant from future alcohol and drug use and reoffending.
The Applicant met his fiancée Pauline at church at the end of 2019 and started “going out” in early 2020. The Applicant proposed to Pauline in December 2021 (transcript/83; A5). The Applicant and Pauline have had to delay their wedding and plans to start a family because of the Applicant’s imprisonment and detention. Pauline lives at home with her parents and did not live with the Applicant. When he was in the community, he would spend time with her on weekends. They are very much in love and are keen to recommence their lives together. They also plan to set up a weight loss and fitness business together, which is a positive activity that will make meaningful use of the Applicant’s time. On the one hand, the Applicant’s relationship and his plans with Pauline are likely to be protective. On the other hand, he was using methamphetamine daily after he commenced a relationship with Pauline. She did not know any details of his history of offending, was entirely unaware of this drug use as well as his history of alcohol abuse. After commencing his relationship with Pauline, the Applicant committed and was convicted of two drug possession offences, four driving/ traffic offences and the “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2” offences against the elderly man. I therefore have some concern that the Applicant’s relationship with Pauline in the past was not protective and did not prevent him from drug use and offending.
The Applicant’s family members are very keen for him to stay in Australia and would be devastated if he was returned to New Zealand. They appear to be pro-social, church-going, and responsible people who care deeply for the Applicant and who are willing to support him in any way they can. However, at the hearing they were also unaware of his drug use as well as his history of alcohol abuse and did not know any details about his offending, even though they were all living in the same house as the Applicant for most of the time, with the Applicant moving out of home for brief periods in 2015 or 2016 and in 2022. This also calls into question how supportive they can be when the Applicant has been able to hide his alcohol use, drug use and offending from them in the past. Similarly, the Reverend at the Applicant’s church has stated that, “We will continue to support [the Applicant] during his re-integration” (A7). Attending church regularly, being part of the church community and having their support is a pro-social activity that may help the Applicant to reintegrate and rehabilitate. I nevertheless have some reservations as to how protective this church support will be because being a part of the church community in the past did not stop the Applicant from drinking, taking drugs and offending.
If the Applicant is released into the Australian community he would have stable accommodation with his parents, sisters, their spouses, and Aroma’s children. His brother-in-law has also arranged employment for the Applicant at a factory where he works (transcript/91). These factors are also protective and may reduce the likelihood of the Applicant reoffending, although it appears that the Applicant is returning to much the same situation he was in before his most recent sentence of imprisonment.
A sentencing assessment report dated 26 August 2022 was prepared for the Applicant’s sentencing for the “Robbery-T1” and “Take & drive conveyance w/o consent of owner-T2” offences on 2 September 2022. The report stated that the Applicant had “been assessed at a Med/Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)” (R2/29 and 461). The sentencing Magistrate also referred to the Applicant being a “medium to low risk of reoffending” (G5/35).
The sentencing Magistrate also made the Applicant eligible to be released on parole from 1 June 2022 to 28 February 2023 (G4/29; G5/35). This parole order is an automatic release on parole at the end of the non-parole period that is imposed by the sentencing Magistrate. Consequently, no decision about the Applicant’s suitability for parole was made by the State Parole Authority. A period of parole with conditions and supervision can help a person’s rehabilitation and reintegration into the community which may in turn lower the likelihood of reoffending. However, if the Applicant is released into the Australian community, he will not have the benefit of parole because his parole period has now expired.
A letter from Corrective Services in New South Wales dated 16 January 2023 confirmed that the Applicant was not eligible to complete rehabilitation programs in prison due to his classification (G10/62).
The Applicant has undertaken the following online programs in immigration detention (A14):
(a)24 June 2023: “Anger Management 101”, 5 contact hours;
(b)27 June 2023: “Alcohol and Drug Use Recovery Program”, 3.5 total hours;
(c)27 June 2023: “CBT and Positive Psychology: A Journey to Well-Being”, 7.5 total hours;
(d)5 July 2023: “Complete Personal Trainer/ Fitness Coach Masterclass Course”, 28.5 total hours; and
(e)19 July 2023: “Diploma in Modern Applied Psychology (DiMAP.)”, 52 total hours.
On one hand, the Applicant’s engagement in rehabilitation shows an intention and a commitment to address his drug use and his offending behaviour. This may, in turn, provide him with strategies to abstain from drug use and not to commit further offences if he was released into the Australian community. However, at the hearing the Applicant struggled to answer questions about what he learnt in these programs. This may be because the Applicant was nervous, which is understandable. However, the programs were not intensive, were not interactive, and involved the Applicant watching videos and answering questions at the end (transcript/20-21). Given that the Applicant has a history of alcohol and methamphetamine abuse which were factors in his offending, it is likely that he would benefit from more intensive rehabilitation programs in the community. Although he said he was “willing to do more, like get more help if I do get out” (transcript/113), the Applicant has not made any plans to engage in programs or alcohol and drug counselling in the community.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
(a)The Applicant was recently, in approximately August 2022, formally assessed as being “medium to low risk of reoffending”.
(b)His lengthy history of alcohol and substance abuse for which he has not undertaken intensive enough treatment. This may make it difficult for him to abstain from alcohol and drug use if he is released into the community without any supervision and faces stressors in the community. Although he has stated he does not want to return to drug and alcohol use and that he is willing to undergo counselling in the community, he has no plans in place, nor is there any evidence he has made any enquiries.
(c)The Applicant has committed numerous offences and has not been deterred from repeat offending despite being on bail, having served periodic detention, a custodial sentence of imprisonment and numerous fines and opportunities for supervision in the community. He was also not deterred and committed serious offences after receiving a warning that visa cancellation would be reconsidered if he committed any offences in the future.
(d)The Applicant was using drugs and alcohol and committing offences whilst he had support from his church and family members, and after he commenced a relationship with his fiancée, and was able to hide his drug and alcohol use and the details of his offending from his family members. Although, following the hearing, they are now more aware, their ignorance in the past raises concerns as to how protective they will be moving forward, and the Applicant is returning to a similar environment to the one he was in when he was abusing alcohol and drugs and offending.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)There have been gaps in the Applicant’s criminal history which suggests he is capable of living in the community without committing any offences.
(b)The Applicant is remorseful for his offending. His family members have noticed a change in him which suggests that he has matured and that he has some insight into his offending.
(c)The voluntary rehabilitation programs that the Applicant undertook in immigration detention suggest a willingness to address his addictions and his offending behaviour.
(d)The Applicant has support from a pro-social fiancée, family members and from his church. He is aware of the negative impact that his situation has had on his family members. He also has stable accommodation with his family and an opportunity for employment that has been arranged by his brother-in law. He intends to attend church regularly. He has a plan to marry his fiancée, and to start a family and a business which would help to make meaningful use of his time. After hearing the closing submissions at the hearing, the Applicant’s family members are now more aware of his offending and his alcohol and drug use, which may assist them to support him in the community. These are all positive factors that may lower the Applicant’s likelihood of reoffending.
(e)His desire not to resume alcohol and drug use, and period of abstinence in prison and immigration detention may assist him to stay drug and alcohol free in the community, which may in turn reduce the likelihood of his reoffending.
(f)The deterrent effect of the time the Applicant has spent in prison and immigration detention, his concerns about returning to New Zealand and being permanently separated from his fiancée and family members in Australia.

Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a moderate likelihood of reoffending.
After also considering the nature of the harm that could result if the Applicant reoffended, which could be very serious, overall, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 and paragraph 8.1.2 both weighed strongly against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any family violence offences, nor has he engaged in family violence conduct and so this consideration is not relevant.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers 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)The length of time the non-citizen has resided in the Australian community, noting that:
•    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
•    more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
•    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s fiancée, Pauline, resides in Australia. They became engaged in December 2021 and plan to marry if he is released into the Australian community. They plan to start a weight loss and wellness business together and to start a family. They wanted to marry in December 2022 and to start a family earlier but were unable to do so because of the Applicant’s incarceration and detention. Pauline would not be able to move to New Zealand to be with the Applicant because her family are in Australia (transcript/80). Pauline is very much in love with the Applicant (A5). She flew to Western Australia from New South Wales so she could give evidence in person at the Applicant’s hearing. She was emotional when giving her evidence at the hearing. In a written statement she said she would be “very lonely” and “severely depressed” (G13/86) if the cancellation of the Applicant’s visa was not revoked. I find that Pauline would suffer emotional detriment if the Applicant was returned to New Zealand because she would be separated from him and would be unable to start a family with him.
The Applicant’s parents and his two older sisters (Aroma and Pilimilose) also travelled from New South Wales to give evidence and to support the Applicant at the hearing. The Applicant’s brother-in-law, Ian Aloua, who is married to his sister Pilimilose, travelled with them, but the Respondent did not require him for cross-examination, and I also did not require him to give evidence. The Applicant’s parents and sisters were emotional when giving evidence at the hearing and it was clear that the prospect of his being removed to New Zealand was distressing to them. The Applicant’s father stated that if the Applicant was returned to New Zealand (transcript/66):
I’ll be very sad because – and very worried because – for him, for there’s no one in the family in New Zealand. And so this is his home. We are his family, and he is – Australia is his home. There is no one else in New Zealand to care for him, and it will be very – I will be very worried about his status if he goes back there to live by himself. There’s no one to help him.
The Applicant’s sisters both described him as being their only brother and that it would be devastating for them and the Applicant’s nieces and nephews if he was returned to New Zealand. His sister Aroma stated (transcript/97):
It’s always been us three. The three siblings. And because he’s the only boy – yeah, it’s just – it will create like too much depression in our lives.
I could see that the family is a close and loving family, and that they are anxious for the Applicant to stay in Australia. In a written statement the Applicant’s father stated, “our lives would be significantly disrupted if my Son were permanently separated from us we a [sic] pleading for our Son to remain in Australia” (G14). The Applicant’s brother-in-law said in a written statement that if the Applicant was returned to New Zealand it “would be dreadful and devastating to the family” (G18).
The Applicant has a large extended family in Australia (A10). This extended family is indicative of his ties to Australia. Other family members have provided letters to support the Applicant staying in Australia including his uncle (G19; A6), cousin (G20) and Pauline’s cousin (A8). I accept that if the Applicant is returned to New Zealand, it may cause his extended family members some emotional distress.
In a letter of support, the Reverend of the Applicant’s church who has known him for the last seven years spoke of the Applicant being a member of the congregation and that the Applicant has been “very helpful with the youth program” at the church (A7; G17). Although there was a period before his most recent sentence of imprisonment where the Applicant did not attend church frequently, his membership and participation in the church congregation over many years are further indications of his ties to Australia.
There are also numerous letters of support from family and friends that were produced under summons by the various courts (R2) that the Applicant was sentenced in (R2/202-208; 267-268; 276-282). This support further demonstrates his connection to persons in the Australian community.
I give considerable weight to the Applicant having been resident in Australia during his formative years. He has resided in Australia for approximately 24 years, having arrived on 17 October 1999 when he was a 10-year-old child. The Applicant spent his formative teenage years growing up in Australia and went to school in Australia until approximately year 11.
The Applicant has made some contributions to the Australian community through helping with the youth program at his church, although this was an informal role. In documents produced under summons from the Sydney Central Local Court there is a letter dated 16 September 2011 from a co-ordinator of a community volunteers’ group which states that the Applicant was an active member of the group for 15 months. The letter states that the organisation provides domestic help such as cleaning, gardening and personal assistance to the elderly, people with disabilities and with special needs. The letter states that the Applicant is “a significant part of our team” and that the Applicant “contributes his spare times in operating our programs and distributing services to meet our client’s needs and wellbeing” (R2/266). I give some weight to these positive contributions.
The Applicant has very strong ties to the Australian community. His fiancée, parents, sisters, nieces and nephews and extended family, who would be negatively impacted if he was returned to New Zealand, are all in Australia. He has no family or friends in New Zealand. His formative years were spent in Australia, and he has made some positive contributions through community work. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs strongly in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.4 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of Direction No 99 sets out the factors that the decision-maker must consider where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has identified 20 minor children whose interests may be affected by my decision. There is minimal information before me concerning many of the children and so I have dealt with their interests together.
Aroma’s children
The Applicant’s sister, Aroma, has the following children who are the Applicant’s nieces and nephews:
(a)nephews, Sione (13 years old, turning 14 in September), Aisake (seven years old); and
(b)nieces, Selu (16 years old) and Pilimilose (five years old).
Aroma’s children live under the one roof with their parents, Aroma and her husband, their grandparents, and their aunt (Pilimilose) and uncle.
The Applicant’s evidence was that before the he left home, he was living with the children and saw them every day. There was a period where he only saw them in person about once a month because he did not want them to see him on drugs, however he stated that he would see them every day on social media, or on Facetime when he spoke to his sisters. However, when he moved back home before going to prison, he saw them every day (transcript/30). The Applicant was somewhat vague about the timing, but it appears from his sister Aroma’s evidence that the Applicant lived at home but moved out for approximately a year in approximately May 2021 until May 2022 when he moved back home for a month prior to going into custody on remand (transcript/98). Aroma’s evidence was that when the Applicant was not living with them, the children would occasionally see the Applicant drive past their school but that they would not talk to him (transcript/99).
In a written statement Pilimilose said that the Applicant, “loves and looks after his nieces and nephews like they [are] his own kids” (G16/89). In a more recent statement, Aroma said that “it will be a shame for them to grow up without their uncle” (A4). At the hearing Aroma stated that the Applicant has “always had a close relationship with my kids since they were born”. She stated that her two youngest children were “really attached to” the Applicant and that her two older kids are “taking it [the Applicant’s situation] hard” and were “waiting patiently”. She said that the Applicant has been a “loving uncle to them” and that he would “spend time with them when he can”.
Aroma said that the Applicant has maintained contact with the children while he has been in prison and immigration detention and that they speak to him nearly every day by video call.
She said that they will miss him if he is returned to New Zealand, and they will be negatively impacted because they will not be able to have a “face to face” relationship and do things together such as going to the park and activities that will create memories for them (transcript/96-97).
The Applicant is the uncle of the minor children and so less weight is given to the relationship because it is non-parental. He has been in prison or immigration detention since 1 June 2022 but has still managed to communicate with the children through video calls (para 8.4(4)(a) of Direction No 99).
There are differing amounts of time until the children turn 18, namely, two, four, 11 and 13 years. For the older children, his influence is likely to be less important to their social and emotional development because there is less time until they turn 18. For the younger children, there is more time until they turn 18 and they may benefit from having a loving uncle in their lives. If the Applicant does not abuse alcohol and drugs and does not reoffend, he may be a positive role model to the children if returned to the Australian community (para 8.4(4)(b) of Direction No 99).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on any of the children. In terms of future conduct, it is unlikely that the Applicant would engage in any future conduct that would have a negative impact on them, unless he were to resume a relationship with them which was impacted by alcohol or drug use, and/or was required to cease due to future offending, prison time and deportation (para 8.4(4)(c) of Direction No 99).
The Applicant has been maintaining contact with the children by video call and he could continue to do so if he returned to New Zealand (para 8.3(4)(d) of Direction No 99).
The children have their parents in their lives to care for them and they are part of a large and close-knit extended family where they live with their aunt and grandparents (para 8.4(4)(e) of Direction No 99).
There are no known views of the children, other than those communicated through the Aroma that I have outlined above (para 8.4(4)(f) of Direction No 99).
There is no evidence of any risk of the children being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that they have experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
I have considered and weighed the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, including that:
·there are only two and four years until the eldest children turn 18, and the younger children were only three and five years old when he went to prison, with there only being a month of meaningful contact after a break of approximately a year before the Applicant went to prison;
·the children have two parents, two grandparents and their aunt and uncle to help care for them; and
·the children have been able to communicate with the Applicant by telephone and video call and could continue to do so in that manner.
On balance, I find that the revocation of the Cancellation Decision is in the best interests of the Applicant’s nieces and nephews. I find that their interests weigh slightly in favour of the revocation of the Cancellation Decision.
Pauline’s nieces and nephews
The Applicant has identified the following children who are his fiancée Pauline’s nieces and nephews. Their parents are Lisa and Tom:
(a)nephews, Dion (17 years old, turning 18 in December); Feleti (16 years old); Steven (11 years old); Tevita (nine years old); Samiuela (six years old); and
(b)nieces, Riley (14 years old) and Olivia (12 years old).
The children live in Melbourne with their parents. The Applicant’s evidence was that he would see them once a month when they came to visit from Melbourne (transcript/31).
However, his fiancée Pauline’s evidence was that the Applicant had only met the children once (transcript/82-83).
The children have two parents to care for them, and the Applicant does not appear to have a relationship with them. There is no statement from the children’s parents before me. Their best interests do not appear to be affected by my decision. I give their interests neutral weight.
Other nieces and nephews of Pauline were identified. Their parents are Pelelita (Pauline’s older sister) and Joseph:
(a)a boy, David (21 months old); and
(b)a girl, JudyAnn (three years old).
The Applicant’s evidence was that he would see these children every weekend when he visited Pauline at her house because Pauline lived with the children and their parents (transcript/34).
Pauline’s evidence was that David and JudyAnn would miss the Applicant a lot if he was returned to New Zealand because they were used to having him around. She said that even when she spoke to him in prison “they want[ed] to talk to uncle”. Pauline said that the Applicant had “spent a lot of time with David” (transcript/81-82).

This evidence seems to me, with the greatest respect, to be a slight exaggeration. JudyAnn would only have been one year old when the Applicant went to prison and David was approximately six months old when the Applicant went into custody.
Again, these children have two parents to care for them, and despite some telephone communications, the Applicant appears to have a limited relationship with them. There is no statement from the children’s parents before me. Consequently, based on the evidence before me, their best interests do not appear to be affected by my decision. I also give their interests neutral weight.
Cousin’s children
The Applicant’s cousin’s children. Their parents are Sione and Mela:
(a)a girl, Jayda (15 years old); and
(b)boys, Jackson (12 years old) and Josiah (four months old).
The Applicant’s evidence was that he would see Jayda and Jackson every month to two months, and that Sione and Mela have now separated (transcript/31).
The children of another cousin of the Applicant’s. Their parents are Mary Anne and Ikuna:
(a)boys, Cecil (11 years old), Stanley (nine years old); and
(b)girls, Soteria (seven years old) and Lisa (two years old).
The Applicant’s evidence was that he would only see these children a few times a year at family functions, birthdays or if he visited them (transcript/32).
Again, the children have parents to care for them, and the Applicant’s relationship with them seems to be limited. There is no statement from the children’s parents before me. Based on the evidence before me, the interests of these children do not appear to be affected by my decision. I also give their interests neutral weight.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(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) acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] 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.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by his criminal history, the Applicant has breached this expectation by not obeying Australian laws. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f).
The Applicant’s “Robbery – T1” offence for which he was sentenced on 2 September 2022 would fall within sub-paragraph 8.5(2)(c) of Direction No 99 which refers to the “commission of serious crimes against women, children or other vulnerable members of the community such as the elderly”. As I concluded above with respect to the first primary consideration, the offence was a serious one for reasons including that it involved an elderly victim being assaulted.
The Applicant also has a conviction for “Resist officer in execution of duty – T2” on 15 March 2013 which would constitute “commission of crimes against government representatives or officials … in the performance of their duties” (sub-para 8.5(2)(d) of Direction No 99).
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, even though I found above that the Applicant is likely to pose a moderate risk of reoffending, the community’s expectations as stated apply regardless.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
However, principle 5.2(5) of Direction No 99 provides that Australia will generally have a higher level of tolerance for criminal and other serious conduct from non-citizens who have lived in Australia for most of their life or from a young age. This principle applies to the Applicant. He is a 34-year-old man who has lived in Australia since he was 10 years old. It is therefore appropriate for me to slightly reduce the overall weight this consideration should be afforded from weighing strongly against the revocation of the Cancellation Decision to weighing moderately against it.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to New Zealand as soon as is reasonably practicable and he will remain in immigration detention until he is removed.
Further, if he is removed to New Zealand, it is likely that the Applicant will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia (for a comprehensive overview with respect to Special Category (subclass 444) visas, see Senior Member Burford in Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666 at [167]-[169]).
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(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.
The Applicant is 34 years of age.
His evidence was that he sometimes suffers from gout, but he has otherwise not identified any physical and mental health issues.
The Applicant has lived in Australia for the last 24 years, since he was 10 years old. There are unlikely to be any language or cultural barriers if he were to return to New Zealand, but it may be difficult for him to adjust to life in New Zealand after living in Australia for most of his life. The Applicant has travelled back to New Zealand on four occasions and so it is not an unfamiliar country (G22).
Being returned to New Zealand is likely to have a detrimental emotional impact on the Applicant because his fiancée and all his family are in Australia, and he does not know anyone in New Zealand. I do note that his parents travel to New Zealand each year for a holiday so they may be able to visit him if he is returned there.
The Applicant has also had significant issues with alcohol and drugs, particularly methamphetamine. There is a possibility that being returned to New Zealand where he has no friends or family network to support him may detrimentally impact on his rehabilitation and that he may relapse.
The Applicant will have access to the same social, medical and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
The Applicant does not have a work history in New Zealand because he came to Australia as a 10-year-old child. He does not have a trade or any specific skills that would assist him to find employment. He has minimal work experience in Australia including working in a factory packing salads. He has completed a 28.5-hour fitness course but has no experience working in the fitness industry. His status as a returnee with a criminal record may make it more difficult for him to find work and to support himself.
I find that there are some impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to New Zealand, but that they are not insurmountable. The main impediment is likely to be emotional due to the Applicant being separated from his fiancée and family if returned to New Zealand, which may impact on his rehabilitation. His lack of a work history, a trade or any specific skills may negatively impact on his ability to find employment, as may his criminal record and status as a returnee.
Consequently, I find that this consideration weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(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.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or any victims of the Applicant’s offences.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant plans to start a weight loss and wellness business. He has completed a personal training course and has submitted a business plan. The business is still in the planning stages and is not yet up and running. I do not think that the proposed business is the type of business contemplated in paragraph 9.4(1) of Direction No 99. As well as the business currently being an idea that has not yet eventuated, an adverse decision would not significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Consequently, I find that this consideration should be given neutral weight.
The Assessment of New Zealanders
The Applicant submitted an article dated 1 February 2023 titled, “Immigration Minister orders changes to assessments for New Zealanders facing deportation” (Exhibit A13). That article suggests that there has been some change to the way that New Zealand citizens who are facing deportation are assessed. Despite the content of the article in A13, there have been no amendments made to Direction No 99 that are specific to New Zealanders, or that would otherwise differentiate between non-citizens based on country of origin or nationality.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.

I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed strongly against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The best interests of Aroma’s children weighed slightly in favour of the revocation of the Cancellation Decision. The best interests of Pauline’s nieces and nephews were given neutral weight. The best interests of the Applicant’s cousins’ children were also given neutral weight.
(d)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)I gave neutral weight to the other consideration of the legal consequences of the decision.
(b)The extent of impediments if removed other consideration weighed slightly in favour of revocation of the Cancellation Decision.
(c)The other consideration regarding the impact on victims was also given neutral weight.
(d)The impact on Australian business interests was given neutral weight.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each of them above, is appropriate.
Overall, I find that the primary considerations of the protection of the Australian community (which weighed strongly) and the expectations of the Australian community (which weighed moderately) against the revocation of the Cancellation Decision slightly outweighed the considerations that weighed in favour of the revocation of the Cancellation Decision. These were the primary consideration of the strength, nature and duration of the Applicant’s ties to Australia (which weighed strongly), the primary consideration of the best interests of Aroma’s minor children (which weighed slightly) and the other consideration of the extent of impediments if the Applicant was removed to New Zealand (which weighed slightly) in favour of the revocation of the Cancellation Decision.
This has been a difficult weighing exercise for me as a decision-maker because the primary and other considerations for and against revocation of the Cancellation Decision are closely balanced. I am cognisant that the Applicant moved to Australia as a 10-year-old child and that his fiancée and family members are anxious for him to be able to stay in Australia. However, the Applicant’s offending is serious, the consequences of his reoffending (with the evidence suggesting he is a moderate risk) are serious, and although the Australian community would have some tolerance for the Applicant because his formative years were spent in Australia, their expectations (for the reasons I outlined above) would be that the Applicant’s Visa should remain cancelled.
In summary, I am not satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 13 June 2023, is affirmed.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..................[Sgd]................................................
Associate
Dated: 5 September 2023

Date of hearing: 16 and 17 August 2023

Representative for the Applicant: Self-represented

Representative for the Respondent:

Ms E Tattersall, Sparke Helmore Lawyers

[2023] AATA 2825

5 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	16 and 17 August 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms E Tattersall, Sparke Helmore Lawyers