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Tanehohaia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 331 (1 March 2024)

Last Updated: 6 March 2024

Tanehohaia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 331 (1 March 2024)

Division: GENERAL DIVISION

File Number: 2023/8441

Re: Troy Patrick Tanehohaia

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

REASONS FOR DECISION

Tribunal: Senior Member Dr M Evans-Bonner

Date: 1 March 2024

Place: Perth

The following decision was made and given to the parties on 1 February 2024 with a note that written reasons would be provided within a reasonable time:

The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 November 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are the written reasons for my decision.

................[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 possessing prohibited drugs, assault offences including family violence, property damage, breaches of suspended imprisonment orders, driving offences – Applicant is a 31-year-old citizen of New Zealand who arrived in Australia as a 19 year old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor son, nieces and nephews – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to New Zealand – impact on victims – Reviewable Decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 62(4)

Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(6), 501(6)(a), s 501(7), 501(7)(c), 501(3A), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)

CASES

Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606

Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46

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 

SCJD and Minister for Home Affairs [2018] AATA 4020

SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79

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, 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, 7(2), 7(3), 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)(a)(i), 8.1.1(1)(a)(ii), 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, 8.2(2), 8.2(2)(a), 8.2(2)(b),8.2(3)(a), 8.2(3)(b),8.2(3)(c)(i), 8.2(3)(c)(ii), 8.2(3)(c)(iii), 8.2(3)(d), 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.3(4)(a)(i), 8.3(4)(a)(ii), 8.3(4)(a)(iii), 8.3(4)(d), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(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(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


1 March 2024

BACKGROUND

  1. The Applicant is a 31-year-old man who was born in New Zealand. He arrived in Australia to reside permanently on 5 February 2012 (G10/61).
  2. On 1 December 2021, the Applicant was sentenced in the Perth District Court to a term of four years imprisonment with a non-parole period of two years for “possession of a prohibited drug with intent to sell or supply (methamphetamine)” (TB4/250).
  3. On 26 April 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 (G37/174).
  4. 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 14 May 2022 (G38).
  5. However, on 8 November 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.
  6. The Reviewable Decision (and documents pertaining to the decision) was sent by email to the Applicant in prison to be hand delivered to him in a letter dated 8 November 2023 (G3/10). It was hand delivered to the Applicant on 9 November 2023 (G68/351).
  7. On 14 November 2023 he lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G3). He was therefore within the nine-day period prescribed by s 500(6B) of the Migration Act.
  8. 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 9 November 2023, meaning that I had to hand down a decision on or before 1 February 2024.

ISSUES

  1. 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

  1. This application was heard on 16 and 17 January 2024.
  2. The Applicant was represented by Ms J Angel of Estrin Saul Lawyers. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
  3. The hearing took place in person at the Federal Court of Australia.
  4. The Applicant gave evidence at the hearing in person on the first and second day of the hearing.
  5. The Applicant’s sister, NO; adult step-daughter, SH; and his mother, KTG, gave evidence in person on the second day of the hearing.
  6. Psychologist Dr Phil Watts also gave evidence by telephone on the second day of the hearing.
  7. I admitted the following documents into evidence at the hearing:
    (a) Applicant’s Bundle of Evidence, filed 15 December 2023, comprising pages 1-93 (Exhibit A1);

    (b) Applicant’s Supplementary Bundle of Evidence, filed 10 January 2024, comprising pages 1-38 (Exhibit A2); and

    (c) Section 501 G Documents, labelled G1-G68, comprising pages 1-351 (Exhibit R1).

  8. I also marked the Tender Bundle, labelled TB1-TB5, comprising pages 1-1414, for identification only, as Exhibit R2. I advised the parties that due to the volume of material in Exhibit R2 that I expected them to specifically identify any documents that they sought to rely upon in this bundle in written and oral submissions, or during the examination of witnesses.
  9. I also had before me the:
    (a) Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 15 December 2023;

    (b) Respondent’s SFIC dated 3 January 2024; and

    (c) Applicant’s Reply dated 10 January 2024.

LEGISLATIVE FRAMEWORK

Migration Act

  1. 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

...

(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.
  1. 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.)

  1. 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.)

  1. 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

  1. 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.

  1. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
  2. 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).
  3. 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.

  1. 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.

  1. 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).
  2. 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.

  3. 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

  1. 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?

  1. 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).
  2. 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). As I mentioned in the Background section above, on 1 December 2021, the Applicant was sentenced in the Perth District Court to a term of four years imprisonment for “possession of a prohibited drug with intent to sell or supply (methamphetamine)” (TB4/250).
  3. Consequently, the Applicant fails the character test, and 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)

  1. 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.
  1. 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)

  1. 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:

  1. 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;

  1. 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.

  1. The Applicant has a short traffic and criminal history in New Zealand, consisting of offences of a relatively minor nature committed when he was aged 16 through to 18. The offences committed after the Applicant turned 18 were for disorderly behaviour, burglary, unlawfully taking a motor vehicle, fighting in a public place and breach of community work. The Applicant mainly received fines for those offences (G9/59). The burglary offence (“Burgles (Oth Prop) ($500-$5000) By Day”) appears to be the most serious because the Applicant had to pay a $6,915.87 reparation and was required to complete 120 hours community work.
  2. The Applicant’s Australian criminal history shows that he has committed a range of offences including driving offences, drug possession offences, multiple breaches of a conditional suspended imprisonment order, breaches of police and restraining orders, assault, and criminal damage offences (TB4/250-257).
  3. 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). The Applicant has not committed any of the categories of crimes listed in para 8.1.1(1)(b) of Direction No 99. However, paras 8.1.1(1)(a)(i) and (ii) include violent crimes and crimes of a violent nature against women, regardless of the sentence imposed. On 8 May 2020, the Applicant was convicted of “unlawfully assault and thereby did bodily harm with circumstances of aggravation” committed on 9 January 2019 and two counts of “common assault in circumstances of aggravation or racial aggravation” committed on 19 September 2019. These were family violence related offences committed against the Applicant’s former partner, CF (G7/53; TB4/300, 306-307). I discuss them in more detail under the family violence primary consideration below, however relevantly to this primary consideration, they should be regarded as very serious.
  4. The categories of offences that can be regarded as “serious” or “very serious” are not limited to the categories of offences set out in in paragraphs 8.1.1(1)(a) and (b) of Direction No 99. Those categories are not exhaustive and other offences can be serious or very serious. The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]).
  5. The Applicant appeared in the Magistrates Court on 17 September 2018 for offences involving cannabis and methylamphetamine possession, as well as the possession of drug paraphernalia for which he received fines of $300, $500 and $150. These offences can be regarded as being less serious as is reflected in the fines imposed. However, on 1 December 2021, the Applicant was sentenced in the District Court to a term of four years concurrent imprisonment for “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”. He was also declared to be a drug trafficker. This offence involved the Applicant being in possession of 47.2 grams of methylamphetamine at 81 percent purity. When police attended his house (in response to a verbal altercation the Applicant was having with his former partner, CF), the Applicant had thrown a clip seal bag containing the drugs into the garden to avoid detection (G5/38). The sentencing Judge remarked that the offending was serious:
    In this case the seriousness is reflected by their being a significant quantity of drugs in your possession, that the purity was high, and that you were aware in a general sense that what you had on you was a significant quantity of drugs. The combination of the quality and the purity is such that considerable harm could have been caused to members of the community if the drug had been distributed into the community.
  6. The Applicant has 18 convictions for driving offences committed between August 2017 and June 2020. They include 12 convictions for “no authority to drive (fines suspended)” and “no authority to drive – suspended” and three convictions for “used an unlicensed vehicle”. In addition, he has had numerous fines registered with the Fines Enforcement Registry between February 2014 and August 2020 for contraventions including exceeding the speed limit by 30 kilometres but not more than 40 kilometres and between 20 and 29 kilometres (TB3/129). Laws prohibiting driving whilst suspended or without being the holder of a valid licence, laws prohibiting unlicensed vehicles from being driven, and laws about speeding are in place to ensure the roadworthiness of vehicles, to ensure that unsafe drivers are not on the roads and are ultimately to protect the safety of other innocent road users, including pedestrians and cyclists. With respect to the offences listed on the Applicant’s history for court – criminal and traffic, the Applicant received fines and driving disqualifications for these offences, up until he appeared in the Magistrates Court on 10 August 2020 when he received disqualifications of four months concurrent and two other disqualifications for nine months cumulative for three offences of “no authority to drive – suspended”. For two of those offences, he was sentenced to four months concurrent imprisonment each. That was likely due to the repeated nature of the offending, which in my view, also suggests that the offending was serious.
  7. On 8 May 2020 the Applicant was also sentenced to a cumulative conditional suspended imprisonment order for four months, suspended for one year for “endanger life, health or safety of a person” committed on 19 September 2019. That offence involved the Applicant pulling up the handbrake of a moving car he was travelling in with his ex-partner, CF. The Magistrate described this offence as being “extremely serious” because it had the potential to (G7/53):
    kill people in the car or kill innocent people that are driving around. They don’t expect a car to all of a sudden brake.

    So it’s an extremely dangerous thing to do ...

  8. Turning to the sentences imposed by the Courts (para 8.1.1(1)(c) of Direction No 99):
    (a) The Applicant received numerous fines at court appearances between 16 February 2017 and 23 September 2019.

    (b) On 8 May 2020, he was sentenced for:

    (i) 10 offences including the “unlawfully assault and thereby did bodily harm with circumstances of aggravation” committed on 9 January 2019;

    (ii) the two counts of “common assault in circumstances of aggravation or racial aggravation” committed on 19 September 2019 offences;

    (iii) the “endanger life, health or safety of a person” offence that I mentioned above, for which he was sentenced to a cumulative conditional suspended imprisonment order suspended for one year; and

    (iv) multiple other offences including “steal motor vehicle to use without the consent of the owner”, three counts of “criminal damage or destruction of property” and two counts of “breach of protective bail conditions”, of which he was sentenced to concurrent conditional suspended imprisonment orders suspended for one year.

    (c) On 10 August 2020, the Applicant was sentenced to:

    (i) three concurrent sentences of imprisonment for the three “no authority to drive – suspended” offences that I mentioned above;

    (ii) 11 other concurrent terms of imprisonment between four months and eight months for 10 breaches of conditional suspended imprisonment orders;

    (iii) a fine of $500 for a further breach of a conditional suspended imprisonment order; and

    (iv) two concurrent sentences of two months each for “breach of police order; Restraining Orders Act 1997”.

    (d) On 1 December 2021, the Applicant was sentenced to a four year concurrent term of imprisonment for “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”

  9. The fines that the Applicant received are indicative that the Magistrates Court viewed those offences as being of a less serious nature, such that they did not warrant a custodial sentence of imprisonment. The suspended sentences of imprisonment suggest a higher level of seriousness and the custodial sentences of imprisonment an even higher level of seriousness because those were imposed when the suspended sentences were breached. The four year sentence of imprisonment imposed on 1 December 2021 was a substantial sentence of imprisonment and suggests that offence was of a very serious nature.
  10. The Applicant has been convicted of 18 driving/traffic offences and 31 criminal offences between 2017 and 2020. His offending history commences with predominantly driving and traffic related offending and then progresses to other offences, culminating in a serious drug offence, the sentence for which resulted in the mandatory cancellation of the Applicant’s Visa. Overall, I find that the Applicant’s offending is frequent and there is a slight trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99).
  11. The Applicant has had numerous appearances for his offending which has been frequent, has received fines on numerous occasions, has breached police orders and conditional suspended imprisonment orders, and has numerous traffic and speeding fines registered with the Fines Enforcement Registry (TB3/129). This would have placed a 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).
  12. I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). In incoming passenger cards dated 4 April 2016 and 23 December 2016, the Applicant ticked “no” in the box next to the question, “Do you have any criminal convictions?” (G10/62-63). At that time, the Applicant did not have any criminal convictions in Australia. However, he had several convictions in New Zealand. The Applicant explained that on his initial entry into Australia in 2012, he declared that he had a criminal history in New Zealand, but that he did not disclose any criminal history in 2016 because he thought his convictions which did not result in any terms of imprisonment became spent and did not need to be declared. He stated that on the second occasion he was questioned by Australian Border Force about not declaring he had a criminal history and realised that he had been misinformed. He stated that he had correctly completed all his incoming passenger cards since then (A1/22, paras [69]-[72]). I accept the Applicant’s explanation and find that he did not intentionally seek to provide false or misleading information. Consequently, I have not drawn any adverse inference from the Applicant’s incorrect declaration on his incoming passenger cards.
  13. 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. The Applicant has not received any such prior warnings.
  14. Where the offence or conduct was committed in another country, Paragraph 8.1.1(1)(h) of Direction No 99 requires me to consider whether that offence is an offence in Australia. Those offences are also offences in Western Australia. I have already discussed the Applicant’s New Zealand offences above.
  15. The Applicant has committed numerous and frequent offences. He has also committed family violence offences against his former partner, CF. His offending ranges from less serious offences for which he has received fines, repeated driving offences, numerous breaches of conditional sentences of imprisonment which resulted in custodial sentences being imposed, and the very serious offence of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)” for which he received a total term of four years imprisonment, resulting in the mandatory cancellation of his Visa. There is a slight trend of increasing seriousness and a cumulative effect.
  16. 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)

  1. 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.
  1. 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:

  1. information and evidence on the risk of the non­citizen re-offending; and
  2. 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)

  1. 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).
  2. The nature of the harm if the Applicant were to commit further drug offences is varied, they are generally, less serious than violent offences. Selling and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
  3. The harm that could result to members of the Australian community if the Applicant were to commit another violent offence including family violence related offending, could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims.
  4. The nature of harm if the Applicant were to commit further general offences (for example offences involving property damage, breaching police orders or conditional suspended imprisonment orders) is varied and may include financial and psychological harm to members of the Australian community and burdening the resources of police and the Courts. The nature of harm that results from such offending is generally less serious than the harm which results from violent offences.
  5. The Applicant also has numerous driving/ traffic convictions including driving whilst suspended and driving an unlicensed vehicle as well as numerous fines for other contraventions such as exceeding the speed limit. He also committed the offence of “endanger life, health or safety of a person” which involved the Applicant pulling up the handbrake in a moving vehicle. 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)

  1. 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).
  2. The Applicant is a 31-year-old man who, as I mentioned above, has been convicted of 18 driving/ traffic offences and 31 criminal offences in Australia between 2017 and 2020. His offences include numerous breaches of court imposed orders and primarily conditional suspended imprisonment orders which suggests a disregard for lawful authority. Overall, the Applicant’s history of frequent offending suggests that there is a likelihood of future reoffending.
  3. The Applicant has, as I have also detailed above, a short traffic and criminal history in New Zealand, consisting of offences of a relatively minor nature committed when he was aged 16 through to 18. I accept that these offences were due to the Applicant’s young age and his associating with negative peers. This was why his mother, KTG, suggested that he move to Australia for a fresh start (A1/13, para [3] and 18, para [38]).
  4. The Applicant relocated to Australia on 5 February 2012, and he did not commit any criminal offences until 26 January 2017, when he committed the offence of “disorderly behaviour in public” (TB/257). Shortly after he arrived in Australia, the Applicant met his partner, PH, who he described as “the love of my life” in mid-2012 (A1/13, para [4]). The Applicant settled into family life with PH and her daughter from a previous relationship, SH, whom he regards as his daughter. In 2013, PH and the Applicant found out that PH was pregnant with their son KT. KT was born in June 2014. When PH was pregnant, the Applicant reconnected with his biological father by text and telephone, however shortly after the birth of KT, the Applicant’s father passed away in New Zealand. In 2015, the family’s home caught fire and PH and the children went to live with her mother, and the Applicant stayed at his sisters because PH’s mother did not like him. He tried to spend as much time with them as possible when he wasn’t working. Apart from these setbacks, the Applicant was living a relatively normal life in Australia, working, being a father and saving money to buy a home.
  5. However, on 8 January 2016, PH’s car was hit by a drunk driver when she was driving with the two children. PH passed away at the scene of the accident. The children were in the car and witnessed their mother dying. SH was in the front of the car sitting next to her mother and broke both her arms. KT broke his ankle. The Applicant struggled to cope with his grief. He took six months off work but found it hard to return to work. PH’s mother insisted that SH should stay with her. She then served court papers seeking custody of both children. The Applicant tried to return to work. He and KT lived with the Applicant’s mother, KTG.
  6. The Applicant then met another partner, CF, in early 2018. CF used and sold drugs and had lost custody of her two daughters due to her methamphetamine use. The Applicant started using drugs with CF and the Applicant started distancing himself from his family and stopped spending time with them. The Applicant’s relationship was toxic and marred by mutual drug use and violence and the Applicant was convicted of family violence related offending against CF.
  7. It was the death of the Applicant’s partner that started his downward spiral and led him to self-medicate with methamphetamine use. This is confirmed in the psychological evidence before me from Dr Phil Watts who undertook a psychological assessment of the Applicant and wrote a report dated 11 December 2023. Dr Watts stated (A1/10, para [31]):
    ... in my opinion, unless Mr Tanehohaia relapses into methamphetamine, he is likely to make a positive contribution to Australian society by engaging in work, paying taxes, and raising family. Without drug abuse, I see the likelihood of both family violence and reoffending in other ways likely to be low, e.g. without drugs, low risk of reoffending in any way including family violence.
  8. Dr Watts also commented on the rehabilitation that the Applicant has undertaken. Dr Watts stated in his report (A1/7, para [18]):
    I note that the Sentencing Judge said “Realistically, your risk everything Ding depends on whether you stop taking methamphetamine.” I would be incomplete agreement on this aspect of the assessment. I would further add that assessing the cause of drug use is something which Mr Tanehohaia has been working on. He lists a number of courses he has done, including having worked with Whitehaven for 25 x one-on-one sessions, attending Narcotics Anonymous, and other courses. He indicated this has resulted in a significant emotional shift in terms of how he deals with problems. In my opinion, he still needs to address the grief associated with the death of his partner. He indicated that he is just starting grief counselling. I would further recommend that he undergoes some EMDR (Eye Movements Desensitisation and Reprocessing) therapy to address the trauma symptoms.
  9. In his evidence at the hearing Dr Watts also stated that the Applicant had shown considerable remorse in letting his family down, but that he also recognised that, and expressed regret at not upholding the rules of society and was able to appreciate the impact of his offending on the wider community. Dr Watts was also of the view that the Applicant had showed some insight and benefits from the rehabilitation courses that he had completed. He also opined and that the Applicant “started using drugs in a period where he had a sense of hopelessness” and where he was experiencing high levels of stress. He had observed that the Applicant is now thinking about the world differently so that there is “a much better likelihood on his return to the community that he won’t go down the drug use path” Dr Watts was “confident” that be Applicant will continue to engage in therapy in the community (transcript/129; A1/8, para [23]).
  10. The Applicant stopped using methamphetamine from at least 3 and a half years ago when he went to prison in August 2020. The Applicant said that he “used drugs because I felt it was a way to block out everything that was going on in my life”, and that in 2019 he “was so addicted that I dealt that I needed to sell drugs because I wasn’t working”. That was when the “possession of a prohibited drug with intent to sell or supply (methylamphetamine)” occurred. This seemed to be a turning point for the Applicant who decided to take “all the opportunities I had to better myself while being in prison both in 2020//21 and with this [his current] sentence” (A1/24, paras [79]-[81]).
  11. In prison the Applicant engaged with the Whitehaven clinic from 13 January 2021. Whitehaven is a private clinic and is being funded by the Applicant’s family so that he could receive specialised treatment. The Applicant has participated in the Addiction Recovery Process Program and Ending Patterns of Violence Program. A letter from Whitehaven dated 7 July 2023 confirmed that the Applicant had also completed 25 one-on-one involuntary counselling sessions of 90 minutes in duration, totalling 37.5 hours (G61/294; G47/228). The following information at the end of the Report shows that the Applicant made progress and treatment gains through engaging in rehabilitation with Whitehaven (G61/306):
    The work that Troy has done with me shows that he is capable of changing his future direction should he choose. He has demonstrated considerable insight into his past actions and why he does what he does. He is aware of his psychologically based fears and triggers and understands the benefits of staying emotionally and mentally healthy.

    Since initial engagement I have seen great progress in Troy’s growth and capacity for change. One of the biggest realisations for Troy was understanding the underlying causes of his drug use and the impact of anxiety and anger on his mental health - and working through these to develop strategies to deal with triggers on a day to day basis.

    ...

    The Addiction Recovery Process Program sessions have all been focused on self-awareness, knowledge of underlying root cause triggers, and is developing strategies to prevent relapse. In addition, Troy is aware of his ‘red flags’ to remain healthy and drug-free. He also recognises that he needs to keep working on himself and on release put into place the measures that keep him healthy.

  12. An earlier report dated 21 April 2022 from the Applicant’s counsellor at the Whitehaven Clinic stated (G47/227):
    Troy is engaging well in counselling and is making steady progress on developing insight into his behaviour and patterns, and is determined to continue the program through to its completion. To date, sessions have focused on exploring underlying emotions related to anger and the ways in which it has influenced his behaviour and choices. Troy has shown willingness to acknowledge his own emotional needs. He is being very open-minded and asks questions to seek clarification and to understand each element of the program before moving on to next. He has a strong, supportive and encouraging network around him and is highly motivated to make positive changes in his life.
  13. The Applicant has completed numerous courses and programs in prison. These include:
  14. He has also completed numerous workplace training certificates including in workplace safety (G51/261-264; 273-276; G59/285; G66/324-326).
  15. The Applicant is currently enrolled in the Medium Intensive General Offending Program which commenced on 27 September 2023 and is due for completion on 20 March 2024 (A1/1).
  16. The Applicant also commenced psychological therapy in relation to grief counselling in December 2023 (A1/2).
  17. The Applicant completed a “Bringing Up Great Kids” program run by the Australian childhood foundation in May 2023 which consisted of 12 hours across six sessions (G66/321-322; TB1/37).
  18. The Applicant’s completion of, and continued participation in, numerous programs, counselling and occupational training in prison shows that he has a willingness to change.
  19. The opinion of Dr Watts, and the comments of treatment facilitators show that his remorse, insight, attitude, and outlook have positively changed from the attitudes that he expressed prior to his sentencing, which included blaming CF (TB3/193). They also suggest that the Applicant has made treatment gains that will help him to abstain from drug use and not to commit further offences if he was released into the Australian community. Relevantly, I also was of the view from listening to the Applicant’s evidence at the hearing that he accepted responsibility for his drug use and his offending and did not seek to blame anyone else for his poor decisions (transcript/85).
  20. The Respondent also referred to the Applicant’s various security ratings in prison, although there was no corresponding submission (RSFIC, para [40(i)]). The Applicant started in maximum security from 12 January 2019 until 17 August 2020 when he was transferred to medium security; was in maximum security again from 22 November 2021; medium security from 10 December 2021; and from 9 February 2023 to the current time, he was in minimum security (TB1/66). I am not sure how the Respondent intended to rely on these security ratings, but there seems to be an overall trend of decreasing security from maximum to minimum security. That security rating is consistent with the observations about the Applicant’s good behaviour in prison in his Parole Review Report performed on 1 September 2023 (TB1/36-37). That report states that the Applicant is an “excellent worker whose [sic] proactive and reliable”, that he “shows a positive attitude and work ethic in his job”, that he resides in a semi self-care unit and “appears to be compliant with the associated rules and routines” and that he is “always polite and respectful”. The Report also shows that the Applicant tested negative in two random drug tests.
  21. It does, however, record an incident on 21 March 2022 which was summarised as “committed an act of misconduct subversive of the order and good government of the prison by receiving contraband during a visit”. It shows that the Applicant was given a loss of gratuities from 9 August 2022 for 14 days (TB1/36 and see also 65). The Applicant was asked about this incident at the hearing. He said that he was strip searched and placed in a dry cell for three days so that his faeces and urine could be checked to see if he had consumed anything. He said that nothing was found (transcript/36).
  22. The Applicant was also asked about other prison incidents (TB1/64-65). He could not recall two of them, and he was the victim of an assault that was the subject of one of the reports. There was another earlier incident on 19 August 2020 described as “unauthorised/ unlawful items – drug paraphernalia” which resulted in the Applicant being confined to a punishment cell for four days (TB1/64). The Applicant said that he got some sleeping pills from another prisoner in exchange for some cigarettes (transcript/35).
  23. There was another incident recorded in August 2022, although it is unclear what that incident was from its description, “prisoner/ detainee misconduct – cell damage” and “sudden illness” and “no further action” was recorded as the outcome (TB1/65). Similarly, the last recorded incident was on 5 September 2023 and was described as “security incident – other” with “no further action” was recorded as the outcome, and so it was unclear what that incident was.
  24. Overall, the prison incidents were all recorded as “non critical”, and with the exception of the 21 March 2022 incident, were less serious in nature. Three of the incidents occurred in 2020, including the incident involving the sleeping pills. I accept the Applicant’s explanation that he did not receive contraband during a visit. Overall, I am not of the view that the prison incidents recorded cast doubts about the treatment gains that the Applicant was able to articulate as a result of the rehabilitation he has undertaken.
  25. If the Applicant is released into the Australian community, he would have support from stable family members including his mother, stepfather, sister, 18 year old step-daughter and other friends and members of his extended family. The Applicant’s mother impressed me as a particularly positive and pro-social influence. She is a registered nurse who is also engages in charity work and is currently caring for the Applicant’s minor son, KT and his 18 year old step-daughter, SH (G62/308). When the Applicant was a methylamphetamine user he distanced himself from his family. I do note that in late November 2019, the Applicant was released on bail to stay with his mother but was found to be non-compliant because he was not meant to contact CF, but she came to the house (TB3/127; TB3/193; transcript/124). His mother tried to go to the local courthouse to get a trespass notice but was told CF had not done anything bad enough (transcript/124).
  26. This incident occurred at the height of the Applicant’s drug use and when he had isolated himself from his family. I note that it was not until the Applicant went to prison in August 2020 that he stopped using methylamphetamine. The Applicant’s mother acted responsibly, but there was little she could do at that time without the cooperation of the Applicant. Although his mother was not able to prevent the Applicant from breaching his bail conditions, I do not accept that it can be concluded that her support in the future will not be protective because the Applicant’s circumstances have now changed. At that time, he was a heavy drug user who had distanced himself from his family and was living with his mother as part of his temporary bail conditions. The Applicant’s current situation is that he has not used drugs for three and a half years, he has undertaken substantial rehabilitation and is willing to change, and he has been communicating openly with his family who have noticed positive changes in him. His family members, including his mother, sister and step-daughter are now aware of his offending and drug use and are strongly supportive of the Applicant. The Applicant’s brother-in-law has also offered him stable employment in his business, and the Applicant will have stable accommodation with his mother and his two children. The Applicant, with help from Whitehaven, also realised the negative impact of his relationship with CF, and with their assistance, he put in place strategies which enabled him to cut off all contact with CF from May 2022 (A1/23, para [77]). The cumulation of these factors, and the Applicant’s willingness to be open with, and to accept assistance from his family members, is likely to be protective.
  27. The Applicant realises the impact that his actions have had on his family, particularly his children and his mother. He seems genuine in his desire to be a good father and to care for his children and feels remorseful for the negative impact that his situation has had on them. The Applicant’s desire to be a good father and to provide his children with a stable upbringing, and the support he has from pro-social family members including his mother and sister, including having stable employment and accommodation, are protective factors that are likely to motivate the Applicant not to resume drug use and not to reoffend.
  28. In summary, the following factors are not protective or suggest some likelihood of reoffending:
  29. The following factors are protective and may reduce the likelihood of the Applicant reoffending:
  30. Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be of a low likelihood of reoffending.
  31. The Respondent also submitted that any risk of the Applicant reoffending is unacceptable. A similar submission was made in Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606, where Deputy President Boyle remarked, at [48]:
    The Minister contended, however, that the harm that would be caused if the conduct were to be repeated, is so serious that any risk that it may be repeated is unacceptable, citing para 8.1.2(1) of Direction 99. I do not accept that contention which, in my experience, appears to be a standard contention made by the Minister in most cases involving Direction 99. It is a submission that should be reserved for cases involving only the most serious of conduct and harm. A finding that “any risk that it may be repeated...[is] unacceptable” under para 8.1.2(1), is, in effect, a finding that an applicant’s visa must remain cancelled. If a risk is unacceptable, by definition, it cannot be accepted no matter how strong the countervailing considerations. The Minister does not identify any particular elements or characteristics of the Applicant’s conduct, or the harm that would be caused, which would warrant elevating this case to one coming within the operation of the final sentence of para 8.1.2(1).
  32. I agree with the learned Deputy President’s remarks which, in my view, are applicable in this application. I do not consider that the Applicant’s offending, and the harm that could result, falls within the most serious range of offences that would elevate it into this “unacceptable” category.
  33. Overall, after considering the nature of the harm that could result if the Applicant reoffended, and the low likelihood of the Applicant committing further offences, 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 slightly against the revocation of the Cancellation Decision.

Summary on para 8.1 of Direction No 99

  1. I have found that paragraph 8.1.1 weighed strongly, and paragraph 8.1.2 weighed slightly against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.

Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)

  1. Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non­ citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

  1. the extent to which the person accepts responsibility for their family violence related conduct;
  2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
  3. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non­citizen's migration status, should the non-citizen engage in further acts of family violence.
  1. Family violence is defined in the interpretation section of Direction No 99 at para 4(1), which provides, in part:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

a) an assault; or

b) a sexual assault or other sexually abusive behaviour; or

c) stalking; or

d) repeated derogatory taunts; or

e) intentionally damaging or destroying property; or

f) intentionally causing death or injury to an animal; or

g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

  1. preventing the family member from making or keeping connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
  1. The following definition, in paragraph 4(1) of Direction No 99 is relevant:

member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.

  1. Paragraph 8.2(2) of Direction No 99, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a) of Direction No 99). It will also be relevant where there is some information or evidence from independent and authoritative sources indicating that the Applicant has been involved in the perpetration of family violence (para 8.2(2)(b) of Direction No 99).
  2. On 8 May 2020, the Applicant was convicted of offences that related to family violence incidents involving his former partner, CF. CF can be considered as a member of the Applicant’s family because they had an intimate personal relationship (see definition of “member of the person’s family” in para 4(1) of Direction No 99).
  3. The offences were only generally referred to by the sentencing Magistrate on 8 May 2020 as “one aggravated assault occasioning bodily harm and two aggravated common assaults plus the associated damage charges which arise out of the relationship as well” (G7/53). The Magistrate also referred to the Applicant “pulling a handbrake on a moving car”.
  4. In his statement, the Applicant described his relationship with CF. He met CF in early 2018. At the time the Applicant met CF she was selling drugs and had lost custody of her daughters due to her methylamphetamine use. The Applicant started using drugs with her. He described that the relationship “started to become really toxic because we were high all the time”, and that they were “constantly fighting and arguing”. He described the relationship as being “toxic” and marred by mutual jealousy and violent outbursts from them both. For example, on one occasion CF threw an ashtray at the Applicant’s head and split it open. On other occasions she tried to run him over with her car and tried to stab him. In his statement, the Applicant stated that CF or neighbours called the police numerous times when they were arguing, but that he never did when CF had attacked him (A1, paras [23], [24], [26], [49] and [53]).
  5. The Applicant described an occasion when he and CF were driving and “she was backhanding me and wouldn’t stop hitting me in the face so I hit her back and split her lip open” (A1, para [50]). When compared with the statement of material facts (TB4/300), this appears to be a reference to the “aggravated assault occasioning bodily harm” offence committed on 9 January 2019, which the Applicant was sentenced for on 8 May 2020. This is a family violence offence because it was an assault against CF (para 4(1) of Direction No 99).
  6. He also described “another time when I pulled the handbrake when we were driving” (A1, para [50]). This offence is the “endanger life, health or safety of a person” offence that was also committed on 19 September 2019 and was briefly referred to by the sentencing Magistrate as I have set out above. The statement of material facts described the Applicant pulling the handbrake up at least five times whilst the vehicle was moving when CF was driving (TB4/309). I regard this to meet the definition of family violence because it is likely to constitute threatening behaviour that coerced or controlled CF or caused her to become fearful (para 4(1) of Direction No 99).
  7. Also on 8 May 2020, the Applicant was sentenced for three “criminal damage or destruction of property” offences one of which was committed on 9 January 2019, and the other two on 23 August 2019 (TB4/253). The facts were not described by the sentencing Magistrate, however, there are corresponding statements of material facts for the same incidents and dates.
  8. The statement of material facts for the offence on 9 January 2019 describes the Applicant and CF having a verbal argument when they were in a stationary vehicle, and the Applicant taking CF’s phone and cigarettes and alighting from the vehicle. He stated that he had thrown her phone into the bushes, but it was in his pocket. He had bent the phone causing it to be damaged (TB4/300-301). The Applicant accepted those facts at the hearing.
  9. The statement of material facts for one of the 23 August 2019 “criminal damage or destruction of property” offences described the Applicant as having taken CF’s phone from her and smashing it multiple times against his bicycle helmet (TB4/302). In the Applicant’s statement he described using CF’s phone on one occasion and that he “smashed it on the road during an argument because she was demanding it back”. He could not recall exactly which incident he was referring to but agreed that there were other incidents where he had damaged CF’s phone (transcript/44).
  10. The statement of material facts for the other 23 August 2019 “criminal damage or destruction of property” offence (TB4/303) described an incident where the Applicant threw a slab of glass at CF’s vehicle, causing a dent in the left rear panel. When she drove off the Applicant followed her and kicked and dented the vehicle when it had pulled up at the traffic lights. The Applicant accepted these facts at the hearing (transcript/71-72). In his statement, the Applicant also described buying a car in CF’s name because he did not have a licence. He described wanting to take the car and when she would not let him, he “kicked the door and put a dent in it” (A1, para [54]). It is unclear whether the Applicant was referring to this same incident.
  11. These three criminal damage offences meet the definition of family violence. They are likely to constitute threatening behaviour that coerces or controls, or that were likely to have caused CF to become fearful. Also, “intentionally damaging or destroying property” is an example of behaviour that may constitute family violence in para 4(1) of Direction No 99.
  12. In his written statement, the Applicant also recalled throwing “the liquid in my drink” at CF, which he thought happened during an argument (A1, para [52]). When compared to the statement of material facts (TB/305-306), this appears to be one of the “common assault in circumstances of aggravation or racial aggravation” committed on 19 September 2019 which the Applicant was also sentenced for on 8 May 2020. The statement of material facts described the Applicant as picking up a takeaway cup containing soft-drink and throwing it at CF.
  13. The other “common assault in circumstances of aggravation or racial aggravation” offence committed on 19 September 2019 was not described by the Applicant or the sentencing Magistrate. It appears, from the statement of material facts, to have involved the Applicant kicking CF during a car trip which caused “pain to her left hand and fingers” (TB4/307).
  14. An assault meets the definition of family violence because it constitutes violent or threatening behaviour. An “assault” is an example of behaviour that may constitute family violence in para 4(1) of Direction No 99.
  15. The Applicant was also sentenced on 8 May 2020 for two “breach of protective bail conditions” offences. The first was committed on 27 September 2019 when police came to arrest the Applicant for unrelated offences. He was found under a doona next to a mattress in the room where CF was staying. This was a breach of the Applicant’s bail conditions which included that he must not contact CF, approach within 100 metres of CF, or enter or remain within 100 metres of the address where he was located or where CF lived or worked (TB4/310). The other “breach of protective bail conditions” offence was committed on 24 January 2020. The Applicant was at his mother’s house (which was his home address) and when police attended, they found him in bed with CF (TB4/313). Although the bail conditions were imposed to protect CF, the two “breach of protective bail conditions” offences are not family violence offences, and did not involve family violence, as defined by para 4(1) of Direction No 99.
  16. On 10 August 2020, the Applicant was sentenced to two breaches of police orders protecting CF. In his statement, the Applicant further admitted that there were multiple police orders preventing them from having contact for a day or two but that a lot of their time together was “a bit of a haze” (A1, para [51]).
  17. One breach was on 30 June 2020, and the other was on 1 July 2020. Again, the sentencing Magistrate did not describe the facts of these offences. The corresponding statements of material facts state that on 30 June 2020, CF was staying at a hotel. The Applicant went to the hotel, argued with CF, and then followed her into her room (TB4/316). The Applicant agreed with these facts. However, he said he attended the hotel because CF had told him where she was and that she was there to kill herself, and he now realises that he should have called the police (A1, para [31]; transcript/51). It is therefore unclear if this offence meets the definition of “family violence” because it is unclear whether the Applicant’s behaviour was violent or threatening or caused CF to become fearful.
  18. The other breach was on 1 July 2020, and was not described by the sentencing Magistrate. The statement of material facts (TB4/316-317), which the Applicant agreed at the hearing was an accurate record of the events (transcript/45), stated that the Applicant attempted to contact CF 15 times using Facebook messenger. Later that day, CF arranged to meet a friend, and the Applicant arrived with the friend. CF walked off and the Applicant followed her. CF and the Applicant “became involved in a physical altercation” (with no further details about that altercation being provided), the Applicant ran from the scene, and CF contacted the police. Although this contact resulted in a physical altercation, it is unclear what happened and whether the Applicant’s behaviour towards CF was violent or threatening, or whether it caused her to be fearful. It is therefore unclear if this behaviour constitutes family violence.
  19. During cross-examination, the Applicant was also taken to detected incident reports, which contained more detailed descriptions of alleged events, and other incident reports in the form of police call logs or running sheets of events which only contained very brief descriptions of alleged events as reported by callers or observed by police. The Applicant was not convicted of any offences detailed in these detected incident reports. I gave self-incrimination warnings in accordance with s 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth), and the Applicant declined to answer. I do not regard these records as sufficiently authoritative in the absence of any agreement by the Applicant, and therefore I do not draw any adverse inference from them.
  20. The Applicant has only committed family violence offences against CF in 2019. There were no family violence offences, nor any conduct, against his first partner, PH. The evidence suggests that the Applicant was violent towards CF on more than one occasion. There does not seem to have been a trend of increasing seriousness and whether there was any cumulative effect is unclear (para 8.2(3)(a) and (b) of Direction No 99).
  21. My impression of the Applicant’s evidence was that he was very frank about his family violence conduct, that he took responsibility for it, and that he did not try to minimise it. He described “regretting” splitting CF’s lip open “as soon as it happened” and that he “grew up around strong women and was raised to never do anything that could hurt or cause fear in a woman”. He further stated that he was “disgusted” by his actions and was “deeply ashamed” by the handbrake incident because he realised that he “could have hurt us or another person on the road” (A1, para [50]) (para 8.2(3)(c)(i) of Direction No 99).
  22. The Applicant was not asked if he understood the impact that the offending may have had on CF. Further, no family violence offences were committed in the presence of the Applicant’s children (para 8.2(3)(c)(ii) of Direction No 99).
  23. The Applicant has undertaken an “Ending patterns of violence course” through Whitehaven Clinic, which was an individualised one on one program, as well as one on one counselling to address his drug use and violent behaviour (A1, para [57]; G61/294). As at 7 July 2023, the Applicant had voluntarily completed 25 one on one counselling sessions, of 90 minutes duration, totalling 37.5 hours. At the hearing he also gave evidence about completing other programs including an Alternatives to Violence program and was able to describe how he learnt to deal with uncomfortable emotions, to regulate emotions such as anger, and to be mindful of actions, consequences and to challenge unhealthy thoughts (transcript/11-12). In his statement he said that through the Whitehaven Clinic he “learnt about my personality type and from there I could identify myself in an unhealthy space and being able to set boundaries” (A1, para [57]). He described how he initially found it difficult to walk away from his relationship with CF because PH was his first serious relationship before she was tragically killed. He therefore did not have the tools to walk away from his unhealthy relationship with CF, which contributed to his making a “bad choice” and breaching the bail protection orders (A1, para [32]). In his statement the Applicant further described only making “bad decisions” when he was with CF, but when questioned about this under cross-examination, he took responsibility for those decisions stating, “I think that decisions I made in the past were all on me” (transcript/85). He explained that through Whitehaven he chose to end his relationship with CF, and was able to form a strategy to stay away from her. He removed her number from his phone list, cancelled all prison visits with her and has now “cut all contact” (A1, para [77]) (para 8.2(3)(c)(iii) of Direction No 99).
  24. The Applicant has not received any formal warnings about the consequences of further acts of family violence (para 8.2(3)(d) of Direction No 99).
  25. In summary, the Applicant committed family violence against CF on several occasions and there is no overall increase in seriousness. The offending took place in 2019 and did not occur in the presence of children. There is no evidence of any violence in his previous relationship with PH, who is the mother of the Applicant’s son and step-daughter. The “aggravated assault occasioning bodily harm” offence committed on 9 January 2019 against CF is serious because it resulted in CF having a split lip. His other family violence offending involving throwing a drink at CF and property damage offences, are at the moderate to low end of the scale. The Applicant’s family violence offending occurred in the context of a toxic relationship marred by mutual violence and methylamphetamine use. My impression was that the Applicant was being truthful when he described the relationship as being “toxic” and when he described the acts of violence CF perpetrated against him, such as throwing an ashtray at him or trying to stab him. This is supported by the fact that CF is now facing recent charges for fatally stabbing her new partner in the presence of their one month old child in 2023 (Applicant’s SFIC, para [44]). The Applicant has, in my view, shown genuine insight, and has made efforts to address the factors contributing to this offending, including completing counselling and programs to address his drug use, grief, violent offending more generally, and engaging in a program addressing family violence through Whitehaven.
  26. After balancing the above considerations, I find that this primary consideration weighs moderately against the revocation of the Cancellation Decision.

The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)

  1. 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.
  1. 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.

  1. 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:

(i) 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

(ii) 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

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

  1. The Applicant has an Australian citizen step-daughter, SH who is 18 years old. SH is the daughter of the Applicant’s previous partner PH, who was tragically killed by a drunk driver. The Applicant has been in SH’s life since she was seven years old. SH considers the Applicant to be her father, and the Applicant considers SH to be his daughter. Their close relationship, and the bond that SH feels with the Applicant from their shared love and loss of SH’s mother, is reflected in the following evidence SH gave at the hearing (transcript/105-106):
    Troy is my dad. He has been that main father figure in my life. He has always been there for me when I’ve needed him. We have a bond that I couldn’t – [bare] to imagine with anyone else or build with anyone else. I feel like – sorry. ... We have a bond about my mum that I couldn’t bond with anyone else or talk to anyone else. Like, I feel like he understands me and everything that I’m feeling.
  2. In a written statement (A1/61), SH stated that the Applicant “has played the main role of being my father” and that:
    He helped me through my life by stepping up and being a dad to me. I love Troy and I know that Troy loves me too, and I don’t want to lose him.
  3. SH stated that she only met her biological father after her mother passed away but that “I don’t have the same connection that I do with Troy” and that her father:
    ...wasn’t there for me like Troy was. I grew up with Troy as my dad.
  4. SH also described that she shares a bond and a connection to her mother with the Applicant (A1/61):
    I talk to Troy about things that happen in the past with my mum, and I can’t do that with [her biological father]. Troy gets me and I get him. I can’t imagine him not being on our side and I know he feels the same way.

    Troy knows me for who I am as a person and knows me for me. He would get sad when I get sad and would always be there for me. He saw how my mum parented me and shows those same things towards me, those same parenting ways by nurturing and supporting me the same way my mum did which I can only get from them. He is the only person in my life that knew my mum like I did. I don’t have any contact with anyone else from my mum’s family and [KT] was so young when mum passed away that he also can’t talk to me about her like Troy can.

  5. SH was in the car with her brother, KT, when their mother was killed. Both children were injured, with SH breaking both her arms. As well as losing her mother so tragically, SH went through a difficult time after the death of her mother. SH wanted to live with the Applicant and her brother, KT, but her maternal grandmother insisted that SH live with her instead. That relationship was a difficult one and SH no longer has a relationship with her maternal grandmother. SH is currently living with the Applicant’s mother.
  6. In her statement, SH described the impact on her if the Applicant was returned to New Zealand with her brother, KT, or if KT remained behind with her. She stated (A1/61):
    If Troy and KT went back to New Zealand it would be like taking my whole life away from me. Not only my father, but the only blood thing I have left from my mum, my little brother. I’m not sure if KT would go to New Zealand with Troy because Australia is his home, but I also don’t think it is good for him to be separated permanently from our only living parent.

    If KT stayed in Australia I would still have my little brother but I know he would be heartbroken and I am worried how he would cope without his dad. His whole life is in Australia but if his dad is in New Zealand I know he will want to be there.

    If they both left it would make me feel empty and have a big void that cannot be filled by anyone. I would have no one. Troy always has my best interest at heart. I would never be able to visit mum’s favourite spots in Perth with Troy and talk about how things were when she was alive. My ability to stay connected with her through Troy and KT would leave Australia with them.

  7. SH gave the following evidence at the hearing which shows the detrimental emotional impact being separated from the Applicant has and will have on her (transcript/106):
    MS ANGEL: And how has Troy being in prison impacted you?

    SH: I feel like it’s heart-breaking not being able to have him there with us, not being able to have that support and, like, not having my dad to go to every time I need something. I feel like, in my eyes, he has, like, filled that void of not having my mum. And I feel like I’m missing not having my mum with him not being by my side.

    MS ANGEL: And how would you feel if he was permanent removed to New Zealand?

    SH: I feel like him being taken away, him being there, I would feel like I’m missing out on that other parent. I feel like it would be, like, taking my whole, like, life away from me. After losing my mum, I had to grieve that loss and do counselling for three years. And I feel like him being taken away, I don’t know how I would deal with that too.

  8. A psychological assessment report dated 3 January 2024 by psychologist Ms Viviana Jansco highlights the mental and emotional difficulties that SH would face if the Applicant and her brother KT were to relocate to New Zealand. The following passage, although lengthy, also highlights that SH has struggled with PTSD from witnessing her mother’s passing in the car after the accident, depression, and anxiety (A2/23-24):
    SH struggles with abandonment issues, and KT serves as her primary connection to their late mother.

    The departure of KT and Troy would constitute a substantial loss for SH, given Troy’s pivotal role as a father figure in her life. This impending separation exacerbates SH’s pre-existing struggles, with KT’s absence intensifying the prevailing sense of loss. KT holds a unique significance for SH, serving as a tangible representation of their late mother. The potential departure is poised to amplify SH’s psychological difficulties and grief, compounding the profound loss and trauma she already experienced with their mother’s passing.

    In an ideal scenario, SH envisions Troy being a constant presence in their household in Australia, participating in family activities, and joining them on camping trips. The notion of losing both Troy and KT add to the already challenging circumstances she faces.

    SH grapples with persistent mental health challenges, encompassing depression, anxiety, and PTSD, as validated by her recent assessment with a psychologist. She vividly recalls traumatic moments, including waking up in the car after the accident and witnessing her mother. Although SH is currently not actively working with a psychologist, she underscores the significance of family support in aiding hand navigation of mental health challenges. SH places particular emphasis on the emotional burden associated with revisiting this traumatic experience, acknowledging the underlying sadness that surfaces when discussing it with therapists or experts.

    The potential move of KT and Troy to New Zealand could have a profound impact on SH, especially considering the challenges she has already faced in her life, including PTSD, depression, and anxiety. SH’s psychological well-being is intricately connected to her familial relationships and support system. The proposed relocation might exacerbate existing mental health issues and introduce additional stressors.

    SH has expressed struggles with abandonment issues, and KT serves as a crucial connection to their late mother. The move could intensify her feelings of loss and trigger emotional distress, potentially heightening symptoms of depression and anxiety. The disruption to her familial support network, particularly the absence of her brother and father figure, may lead to a significant emotional setback.

    Given SH’s history of trauma, including witnessing her mother’s passing, any substantial change in her environment or relationships could evoke distressing memories and intensifies symptoms of PTSD. The move might rekindle traumatic images and emotions associated with her mother, potentially impacting her daily functioning and emotional stability.

    Furthermore, the geographical separation from her brother, KT, whom she describes as an image of her mother, might deepen SH’s sense of isolation. The emotional reliance on KT as a source of support and understanding may be disrupted, affecting her ability to cope with pre-existing mental health challenges.

    The prospect of relocating to a new country, with its unfamiliar environment and cultural differences, could pose an additional layer of stress for SH. Individuals with mental health concerns often find comfort and stability in familiar surroundings, and the upheaval associated with moving might contribute to heightened anxiety and emotional vulnerability.

    SH’s struggles with depression have been acknowledged by professionals, and any major life changes, such as the proposed move, could potentially trigger or worsen depressive symptoms.

    In summary, the potential move to New Zealand has the potential to significantly impact SH’s mental health, considering her history of trauma and existing psychological challenges.

  9. I accept these uncontested opinions of Ms Jansco. I find that the Applicant’s step-daughter, SH, is likely to suffer significant detriment if the Applicant is removed from Australia. After witnessing the death of her mother and experiencing trauma through living with her maternal grandmother, if the Applicant is removed to New Zealand, she will lose the daily and meaningful connection and interaction with her father (and possibly her younger brother). With that loss would come the loss of the real and practical connection to her mother, and she is likely to feel emotionally isolated and abandoned. The detrimental emotional impact on SH and her mental health would be very serious, particularly given that SH suffers from PTSD, depression, and anxiety.
  10. The Applicant’s mother, KTG, is a permanent resident of Australia. She raised the Applicant and his sister as a single mother. She has a close relationship with the Applicant. She is proud of how hard he has worked towards his rehabilitation and said she would be “devastated” if he was returned to New Zealand (transcript/114). KTG also stated that it would be “heartbreaking for all of us” in the family if the Applicant was deported and that she “hope[s] like crazy” that he can come home and live with her (A1/71, para [55]-[58]). KTG is also very concerned for the well-being of SH and KT if the Applicant was removed from Australia (A1/69, para [41]). KTG further stated (A1/72, para [63]):
    I would be absolutely shattered if Troy was deported, it would break my heart enormously. Although I love my son with all my heart, my sorrow, pain and heartache would be for the devastation I know that would fall upon his kids at the time and the impact that it would have on their future.
  11. KTG is also caring for the Applicant’s nine year old son, KT. If the Applicant returns to New Zealand without his son, KTG will continue to care for him. This is likely to impose both a practical and emotional burden for KTG as a grandmother caring for, and worrying about the emotional well-being of her grandson in the absence of his father. I find that the Applicant’s mother, KTG, is likely to experience emotional and practical detriment if he is removed to New Zealand.
  12. The Applicant’s older sister, NO, has a close relationship with the Applicant. She has five children and the eldest two are very close to the Applicant. Their interests are discussed under the best interests of minor children primary consideration. In a written statement, NO described the impact on her, and on her family more broadly, if the Applicant was removed from Australia (A1/79-80, para [31]):
    I feel like after many years and many tears I finally have my brother back and if my brother was removed from Australia, I would be absolutely heartbroken and devastated. The bond I have with my brother is one of the most meaningful relationships I have. We provide each other with emotional support during both good times and challenging moments. He is someone who understands me deeply and I can trust him. I could have cut ties with my brother but I feel like this whole experience has brought us closer. Overcoming obstacles as a team has strengthened our bond and rebuilt resilience in our relationship. If anything, I feel like I know my brother even more. Troy plays a huge role in our family dynamic and support system not just for me but for my children. We would have to relive the pain of grief and loss of him again. Our family will be broken.
  13. Similarly, at the hearing NO stated, in response to a question about how she would be impacted if the Applicant was removed from Australia (transcript/99):
    I would be devastated. I would be heartbroken. He has always had my back. I’ve always had his back. It has always been me and my mum and my brother. So the thought of him never being able to come back here is hard to imagine. I just think it will just not affect me but my children, and – he’s my best friend. It’s a meaningful – one of my most meaningful relationships that I have in my life.
  14. NO also expressed worry about the impact on her niece, SH and nephew, KT if their father was deported, describing it as her “biggest worry” and that, “[c]onsidering the challenges they have already been through, it would break my heart to see them go through further pain of loss” (A1/76, para [16]).
  15. I find that the Applicant’s sister, NO, would be negatively impacted if he was removed from Australia. She is likely to suffer the emotional detriment of being separated from her brother who she is very close to and is also likely to suffer from the worry about the negative impact his deportation would have on her niece, nephew, and the broader family.
  16. NO’s husband, RO, who is therefore the Applicant’s brother in law, also provided a statement where he described the Applicant as “the missing piece to our family” and that the family would “all be affected extremely if Troy was deported”. He further stated that “It’s already hard for us with Troy being in jail, we just want him home with all of us, it leaves such a big whole [sic] in our family” (A1/57 and 59). RO is also likely to suffer some emotional detriment if the Applicant is removed to New Zealand.
  17. The Applicant’s mother, KTG, also wrote of the impact on the Applicant’s extended family members in Australia if he were deported (G43/218). She stated:
    Our family are very close, and we spend a lot of time together. We will often holiday together, spend weekends together, see each other several times during the week, ring each other frequently, go for dinners/lunches, day trips, associate with other families together, go to the kids sports together and much more. Not having Troy with us and the kids like before, would split our whole family unit apart. Troy is a major component to our family with his presence, especially how all the dynamics fit together within our unit. This would be very heart-breaking for all of us and the kids to know that he wouldn’t ever be allowed to come back to Perth if the decision was made to deport him.
  18. The Applicant’s step-father, DB, who is married to his mother KTG, has also stated “Please don’t send him back to New Zealand away from his son and his family, please give him this one last chance” (G17/93; see also G46/224-225). In a more recent statement dated 3 December 2023, the Applicant’s step-father stated: “If Troy was deported it would have the most negative affect on us all, he is an important part of this family very much loved by all” (A1/51).
  19. The Applicant’s step-sister wrote in a statement dated 16 February 2021 (G28/141) that:
    I think if he was deported, it would effect a lot of people in his family, especially KT and SH. It would be enormously sad to see him separated from us.
  20. The Applicant’s brother-in-law, who has offered the Applicant employment if he is able to remain in Australia, stated that (A2/57):
    I honestly think we would all be affected extremely if Troy was deported, as he is the missing piece to our family. We do everything together as a family, go to dinner, beaches and bbq’s, family holidays, day trips, it would be so difficult not having him present. What would actually hurt the most though is when we spend time as a family together and seeing his kids without both parents by there [sic] side.
  21. I find that if the Applicant was removed from Australia, on a broader level, his removal would be likely to impact his extended family members and family friends in Australia. Additionally, having close family members in Australia is a further indicator of the Applicant’s ties to Australia. In this regard I note letters of support from his cousin, SP (G24/119; G54/270-271), as well as a statement from her which says she will be “mortified and absolutely devastated” if the Applicant is not able to stay in Australia (A2/48-49). Another letter from a family friend, GF (G24/120), from his great aunt and uncle (G31/144), and from the Applicant’s former employer (G44/222) each stated their support of the Applicant remaining in Australia. Another statement from a friend, JT, states that she will support the Applicant with whatever help he needs if he is able to stay in Australia (A1/39, para [14]). The Applicant’s friend and step-sister, AB, also stated that she would help the Applicant “in any way” if he is able to stay in Australia (A2/43, para [14]). A family friend, AB, also provided a statement in support (A2/45-46). Another friend, VT, stated in a statutory declaration dated 5 December 2023 that, “If Troy is given the opportunity to remain in Australia, I can guarantee I will do all in my power to keep him on the right track and to support him with readjusting to live here with the kids” (A1/54, para [14]).
  22. The Applicant was devastated by the loss of his partner PH, whom he described as the love of his life, when she was tragically killed by a drunk driver. That tragic event catalysed the Applicant’s downhill spiral into drug use and offending. His link to his partner and his desire to fulfil a promise to her “to stand up and be the father and man that I should be, and know I can be, for my family and the community that I am part of here in Australia” is a further link to the Australian community. He stated (A1/33, para [142]):
    Australia is my home and PH’s final resting place. If I can’t stay, I won’t ever be able to visit her cross or the special places we had. I won’t be able to take our kids there and remember the good times with them and celebrate their mum with them at home.
  23. The Applicant’s children, namely his 18 year old step-daughter SH and his nine year old son KT, are indicative of strong ties to the Australian community and I therefore give significant weight to those relationships (para 8.3(2) of Direction No 99).
  24. The Applicant has been a resident in Australia for 12 years, having arrived as a 19-year-old adult, just before his 20th birthday. Consequently, the Applicant was not a resident in Australia during his formative years, which would attract considerable weight, but he has been a resident in Australia for most of his adult life (para 8.3(4)(a)(i) of Direction No 99).
  25. The Applicant has made some positive contributions to the Australian community through employment and through “doing upgrades on the Australian Anzac Naval Fleet” although there is no other information about the details or frequency of this volunteer work (G25/133-134) (para 8.3(4)(a)(ii) of Direction No 99). There is also a letter dated 26 June 2022 from an organisation that provides food and goods to people in need in the community thanking the Applicant “for volunteering [his] time and effort” (G56/277). I do, however, give some weight to these positive contributions.
  26. Whist the Applicant was not a resident in Australia during his formative years, he did not start offending soon after arriving in Australia. His first criminal offence was committed approximately five years after arriving in Australia, being a “disorderly behaviour in public” offence committed on 26 January 2017 (TB4/257) (para 8.3(4)(a)(iii) of Direction No 99). Therefore, I do not think that this factor should diminish the weight to be given to the Applicant’s time in Australia.
  27. The Applicant has strong ties to the Australian community. His 18 year old step-daughter, nine year old son, mother, step-father, sister, brother in law, five nieces and nephews, step-brother and step-sister and cousins, reside in Australia. The broader family are likely to be negatively impacted if he was returned to New Zealand because they are a close knit family. The Applicant’s 18 year old step-daughter is likely to be the most detrimentally impacted, as well as his nine year old son (whose interests I discuss under the best interests of minor children primary consideration). His mother and sister are also likely to suffer a significant level of emotional detriment if the Applicant was deported. The Applicant has been a resident in Australia for 12 years and although he did not spend his formative years in Australia, he has spent nearly the whole of his adult life here and his partner’s resting place is here which is a significant connection for him. He has also made some positive contributions through volunteer work. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs very 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)

  1. 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.
  2. 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.

  1. 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.

  1. There are eight minor children whose interests may be affected if the Applicant’s Visa remains cancelled. The children are:

The Applicant’s nine-year-old son

  1. The Applicant has a nine-year-old son, KT, whose interests will be affected by my decision. KT was born in born in June 2014, and so he will turn 10 in June this year.
  2. As I have mentioned above, KT’s mother PH was tragically killed in January 2016 when the car she was travelling in with her two children, KT, and SH, was hit by a drunk driver. Both children were also injured and hospitalised with KT suffering a broken ankle (transcript/7). The children lived with their parents prior to their mother being killed. There was a brief period of a few months in late 2015 until PH was killed in January 2016 when the children and their mother lived with their paternal grandmother temporarily because their family home caught on fire. The Applicant stayed at his sister’s house because the maternal grandmother did not like him, but he spent as much time with PH and the children as he could when he was home from work (A1/14).
  3. Following his mother’s death, KT lived with the Applicant and his mother, KTG. During that time, the children’s maternal grandmother insisted that SH live with her and sought custody of KT as well (A1/15). SH is now 18 and lives with her paternal grandmother and KT. The children’s maternal grandmother is no longer seeking custody of KT (transcript/16).
  4. The relationship between the Applicant and his son is a close parental relationship (para 8.4(4)(a) of Direction No 99). They talk on the phone before and after KT goes to school (A1/92). KT lived with the Applicant (and the Applicant’s mother KTG) when the Applicant was in the community. The Applicant’s mother would take KT to day-care in the mornings and then the Applicant would pick KT up in the afternoon after work, bathe him, give him dinner, play with him, and put him to bed every night (A1/15, para [22]).
  5. In a statement (A1/92, paras [2]-[4]), KT described his close relationship with the Applicant and the activities that they enjoy doing together:
    I’m very worried about my dad going to New Zealand because I’ve lost my mum and now I don’t want to lose my dad. My mum died when I was little so it has been my dad and me and my sister for a long time.

    If my dad goes to New Zealand, I will not have any parents. Losing my dad is like losing my family. Living with my Nan has been good but I don’t want to pick between my Nan in Australia and my dad in New Zealand.

    My dad and I have had a close connection for years and I don’t want to lose it. I love my dad so much and I hope he can stay with me.

    Before dad went to prison we spent time at the park, we also played lots and lots of time basketball because that is my favourite thing to do. We would go to the beach and also have lots of fun spending time with my family. We would go to places to eat, and also dad would take me to mall.

  6. I accept that the Applicant and KT have a close and meaningful parental relationship which should be given significant weight.
  7. There are approximately 8 years until KT turns 18. This is a substantial amount of time during KT’s formative years. The evidence before me suggests that the Applicant is a loving and involved father who undertook primary caregiving responsibilities for KT, with assistance from his mother KTG, when he was in the community and that he is likely to play a positive parental role in the future (para 8.4(4)(b) of Direction No 99).
  8. There are Family Court orders in place whereby KT is to live with KTG, the Applicant and his mother have shared parental responsibility for KT, and that KT spend time with the maternal grandmother as may be agreed with KTG (G52/265-266). However, KT does not appear to have any current contact with the maternal grandmother. [redacted].
  9. I also have some doubts, based on the evidence before me, about the maternal grandmother’s ability and suitability to be a positive role model for KT. [redacted].
  10. The Applicant’s conduct has not had an adverse effect on KT, other than KT not having his father present in her life. If the Applicant is released into the Australian community, resumes drug use, and reoffends, it is likely to have a negative impact on KT who will face further instability and separation from his father (para 8.4(4)(c) of Direction No 99).
  11. It is unclear whether KT would relocate to New Zealand with the Applicant if the Applicant is deported.
  12. If KT returned to New Zealand with the Applicant, he would be separated from his grandmother KTG, his sister SH and his extended family in Australia. The Applicant will need to raise KT by himself in New Zealand without a support network. Separating KT from his sister, who he is very close to, is also likely to be very distressing for him.
  13. If the Applicant was returned to New Zealand and KT did not relocate with him, KT would grow up without a mother and a father. He would be raised by his paternal grandmother KTG. This scenario is also likely to be detrimental to KT because he shares a strong bond with his father. The Applicant could maintain contact with KT by telephone or FaceTime if he is removed from Australia, however these communications would be a poor substitute for KT having his father physically present and involved in his life.
  14. KT would suffer detriment in either scenario. This is evident from KT’s own words. In his statement, KT stated (A1/92-93, paras [6]-[12]):
    If my dad goes to New Zealand, I will then have to go with him. I want to stay with my dad in Australia though because this is our home and I’ve been here all my life. He has already got his stuff sorted out and he has a job for when he comes home. Please let him stay in Australia so that I can stay Australia with him.

    It makes me sad dad being in prison. I can’t describe it. Because I don’t get to see him every day I miss my dad a lot but I get talked to him on the phone lots. Sometimes I talk to before I go to school and talk to him lots after school.

    If he goes to New Zealand and I stay here, my connection with my dad will go and I won’t have either of my parents any more. I want my connection with my dad to build and build. I want him to stay here forever so I can see how proud he is of me.

    I need my dad to come home to me. I know that when he does we will go to the park, and he will help me with my schoolwork. He will help me understand life and help me when I have troubles. He will teach me to be kind and help others when they need it.

    I think it is the best thing for us to stay in Australia. I think my sister will miss my dad if he goes to New Zealand. If I went with my dad, my sister would be very sad because she would have no family left in Australia.

    I am close to my sister, we have a really good connection. My sister means a lot to me, and even though we make fun of each other sometimes, we love each other from the bottom of our hearts. I love her so much. I don’t ever want her to leave me.

    I would feel really sad if I had to leave my sister behind and go to New Zealand, it would be hard for me and I would cry every day for her. I know my sister would feel very alone if me and dad left her, and she would cry for us.

  15. Both scenarios will have a detrimental impact on KT from both an emotional and practical perspective (para 8.3(4)(d) of Direction No 99). That finding is further supported by evidence from psychologist Dr Watts. The report dated 11 December 2023, Dr Watts relevantly stated (A1/10, paras [30]-[31]):
    In my opinion, Mr Tanehohaia’s relationship with his son and, to a lesser degree, his relationship with his stepdaughter, will be of benefit to these young people. I note that his son is Australian-born, and not deporting him will have a significant benefit to the son. If the son were to go with Mr Tanehohaia, he would then be separated from the grandmother who has been looking after him over the last few years during the imprisonment (and is likely to be his most important attachment figure), and also his sister. Therefore, these things would have an added negative impact. If the child does not go with his father, then the child will be raised by the grandmother and will not develop a healthy, balanced relationship with his father.

    In addition to the positive benefit to his son who is an Australian child, in my opinion, unless Mr Tanehohaia relapses into methamphetamine, is likely to make a positive contribution to Australian society by engaging in work, paying taxes, and raising family. Without drug abuse, I see the likelihood of both family violence and reoffending in other ways likely to be low, e.g. without drugs, low risk of reoffending in any way including family violence.

  16. The findings of psychologist Ms Jansco, who wrote a psychological assessment report about KT dated 3 January 2024 made the following assessment as to how KT would be impacted if his father was removed to New Zealand, and he stayed in Australia (A2/21):
    Should Troy face deportation, KT has ardently expressed his wish to accompany him, emphasising the importance of SH and KTG to join them, aspiring to the unity of the entire family. KT places immense value on the notion of familial togetherness. Despite this heartfelt desire, the realization of this aspiration appears improbable, given that KTG and her family are well established and settled in Australia.

    The prospect of his dad relocating to New Zealand while he remains in Australia evokes a profound sense of sadness in KT. He contemplates the possibility of maintaining contact by calling and visiting if he doesn’t go with his father.

    In the event of his father’s departure, KT will likely be feeling let down and shattered, possibly interpreting the separation is a sign that his father doesn’t love hi. The emotional impact of such a situation may weigh heavily on KT’s sentiments and perception of his relationship with his father.

  17. Ms Jancso also offered the following opinion regarding the impact on KT if he travelled to New Zealand to live with his father, but in turn was separated from his paternal grandmother, sister, and other relationships in Australia (A2/22):
    The potential emotional and psychological impact on KT, of travelling to New Zealand with his father and facing separation from his paternal grandmother, sister, and other relationships in Australia may result in a sense of loss and grief, given the separation from key figures in his life, potentially leading to feelings of sadness, anxiety, and confusion. The disruption of significant relationships has the potential to impact his emotional and psychological well-being.

    The absence of essential family members in Australia, especially his sister and paternal grandmother, may create emotional distress and disrupt the dynamics that contribute to his sense of security. Changes in family dynamics came back to child sense of stability and security, influencing their overall psychological well-being.

    Separation from friends and extended family in Australia may result in a sense of isolation and loneliness for KT. Social connections play a crucial role in a child’s development, and disruptions to these connections may affect social and emotional development.

    Furthermore, moving away from Australia, where KT has spent his entire life, may evoke feelings of displacement, and impact his sense of identity. Changes in environment and relationships can influence the development of a child’s self-concept.

    While being with his father may provide emotional support, the absence of his sister and grandmother may intensify feelings of loss. Parental separation, even in the context of relocation, can impact a child’s emotional regulation and overall psychological adjustment.

  18. The psychological evidence strongly suggests that the best interests of KT are served by the Applicant remaining in Australia, where KT will have the support of his father, sister, paternal grandmother, and extended family.
  19. As I mentioned above, KT is cared for by his paternal grandmother, KTG who provides good care for him (para 8.4(4)(e) of Direction No 99). As I have mentioned above, he does not currently have, nor want to have, contact with his maternal grandmother, [redacted].
  20. As I have outlined above, KT has expressed strong views that he does not want to be separated from his father (para 8.4(4)(f) of Direction No 99). The following passage from KT’s statement is particularly concerning and reflects the emotional detriment that KT is suffering due to the Applicant’s situation, and the negative emotional impact that affirming the Cancellation Decision would have on KT (A1/93, paras [13]-[14]):
    I love my dad to infinity and beyond. He means everything to me. If he wasn’t in my life, I wouldn’t have as good a life. I would get a rope and go to the garage and tie it around my neck and hang myself.

    I really want to read this out to you because I want him to stay and I want to show you how important he is to me. Please let my dad stay in Australia so that I can stay here with my sister and my friends. This is our home and I don’t want to leave, but I also don’t think I can be away from my dad for any longer. I miss him.

  21. I am not of the view that KT is at risk of any family violence from the Applicant. That is supported by the opinion of Dr Watts above. I also note that KT and SH were not present and did not witness any of the family violence incidents perpetrated by the Applicant against CF. There is no evidence that KT has been abused or neglected by the Applicant in any way. Overall, the evidence suggests that the Applicant is a loving and caring father who is concerned for his son’s well-being and who would not hurt him (para 8.4(4)(g) of Direction No 99).
  22. There is no evidence that KT has experienced any physical or emotional trauma from the Applicant’s conduct, other than the emotional stress that he is currently experiencing due to being separated from his father due to imprisonment, as well as his father’s potential removal from Australia (para 8.4(4)(h) of Direction No 99).
  23. I have considered and weighed the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, including:
  24. On balance, I find that the revocation of the Cancellation Decision is in the best interests of the Applicant’s son, KT. I find that his interests weigh very strongly in favour of the revocation of the Cancellation Decision.

The Applicant’s sister’s children

  1. The Applicant’s sister, NO, has five children whose interests will be affected by my decision.
  2. NO stated that the Applicant has a “close bond” with all her children, especially the eldest two (A1/75, para [10]). She stated that (A1/75, para [11]):
    I was so grateful Troy wanted to also move to Australia because he provided my kids with continuity in our family unit. We did life together and our children grew up together here. His presence gave my kids a sense of community and unity which was so important, especially living in another country. He was a positive role model for the kids to look up to, not only did uncle spoil them but they loved spending time with him. We often did things as a family like camping, 4-wheel-driving, fishing, beach days, birthdays, kids activities, family dinners and bbqs.
  3. In the following excerpt from the transcript of proceedings, NO explains the close bond that the Applicant has with her children, and the likely impact on them if he was removed from Australia (transcript/96-97):
    MS ANGEL: And what has Troy’s relationship been with your children on his involvement in their lives?

    NO: He has a super close bond with the kids, especially my older two. I was a single mum at 16, so I guess he was just always there to lend a helping hand and, I guess, be the positive role model in my son’s life especially. And that male figure. He helped me navigate, I guess, parenthood, even though he was my younger brother. I’m just glad that I had him to help me with all that. I had, I guess – so my son is 17 now, so he’s had conversations with him that maybe my son didn’t feel comfortable speaking to me about because I’m a girl. And so he would feel comfortable with his uncle. Just offered him guidance and support. Like, I guess an example would be I had to tell my son that he had a different dad to his siblings when he was 12, and Troy, kind of, helped me have that conversation and just be there to support him, love on him and make him feel like he had, like, that solid family. Yes. And then with my daughter – this was before he had kids, so they would get spoilt by their uncle. He would take them out, give me a break. And we lived together most of our lives. So he was just always there for us.

    MS ANGEL: What impact do you think it would have on your children in particular, but all of your children, if your brother can’t stay in Australia?

    NO: I think it will have a big impact because he was that consistent support, consistent role model from a baby. Yes. And even now they still talk on the phone. He rings me almost every day. He speaks to the kids. You know, I ask him questions about certain situations and he helps me. I don’t know, gives me advice about things. But, yes, I just – he has helped me create, like, a community or that family foundation for my kids. So for that to be gone, I guess it would feel broken for them. Yes

  4. J is the Applicant’s 17 year old nephew. NO gave birth to J when she was 16 years of age and described the Applicant as being a “positive male role model” at the time who “was always there to lend a helping hand whenever [she] needed it”. NO also stated that the Applicant “played a crucial role” in helping her to have difficult conversations with J, including when she had to tell J he had a different father to his siblings (A1/74, paras [4]-[5]).
  5. J also wrote a statement in support of the Applicant (A2/2-3). He described spending a lot of time with the Applicant, being “extremely close” to the Applicant and speaking to him weekly on the telephone. He stated that his “relationship with [his] uncle is important” and that he wanted his uncle to be there for his graduation, 21st birthday and for important events in his life. He stated that his uncle does not deserve to be deported and that it will be “very hard” if his uncle is deported. J described how his uncle helped him, “He helped me through my parents break up and also took me and my sister out to places and spent time with us”.
  6. AH is the Applicant’s 12 year old niece also wrote a statement in support of the Applicant (A2/4-5). She stated that:
    I love him so much. If he moved to New Zealand I will be devastated.
  7. AH also described spending time with the Applicant:
    Uncle Troy is a good uncle and he has taking her of me when I was younger and helped my mum babysit while my mum had adult time. Uncle Troy used to live with us and he was always kind to me. He also took me shopping and bought me some ... shoes.
  8. AH stated her wish for the Applicant to stay in Australia: “I want uncle Troy to stay with our family and never go away”. AH also expressed concern that her cousin, KT, who she is “very close to” would go to New Zealand with the Applicant: “I am worried that KT will leave me and my Nan and that will be terrible.”
  9. With respect to the nature and relationship between the children and the Applicant (para 8.4(4)(a) of Direction No 99), the relationship is non-parental because the Applicant is the children’s uncle. The Applicant has a close relationship with 17 year old J, and 12 year old AH. There is a more limited relationship with the younger children. K was born in August 2020, and the Applicant went to prison on 10 August 2020. AM was born in February 2022, and the Applicant was serving a four year prison sentence from 11 November 2021. The Applicant has not met the youngest child who is only two months old. The Applicant stated at the hearing that he keeps in contact with the children, and they write him letters (transcript/17).
  10. J is turning 18 in approximately six months’ time, and AH will be 18 in approximately six years’ time. There is a substantial amount of time until the youngest children turn 18, with K turning 10 in 15 years, AM in approximately 16 years and AK, who is only two months old, in just under 18 years. The Applicant is very fond of his nieces and nephews and is very close to his sister who is the children’s mother. He likely to be a positive role model in the future to the children of he can abstain from drug use (para 8.4(4)(b) of Direction No 99).
  11. There is no evidence that any conduct of the Applicant has had a negative impact on the children. If he were to resume drug use and/or reoffend after continuing and developing relationship with the children, it may negatively impact them (para 8.4(4)(c) of Direction No 99).
  12. If the Applicant is removed to New Zealand, it would be the two eldest children, J and AH, who would be the most impacted. They have the closest relationship to the Applicant and are looking forward to engaging in activities with the Applicant and to having him personally involved in their lives to provide guidance and support and to engage in activities with them. As I mentioned above, the next two children, K and AM do not have the same relationship with the Applicant because of their young ages and the Applicant being in prison for much of their lives. He has not met the youngest child. Thus, it may be possible for the youngest three children to engage with the Applicant via electronic means such as the telephone of Facetime if he was returned to New Zealand. However, this would be far more difficult for the eldest children who have developed a more involved and in-person relationship with the Applicant (para 8.4(4)(d) of Direction No 99).
  13. The children are well cared for by their mother, NO, and her husband, RO who fulfil a parental role. RO is the father of the four younger children and is the step-father to J (para 8.4(4)(e) of Direction No 99).
  14. As evident from the evidence concerning the eldest two children that I outlined above, they would like the Applicant to remain in Australia (para 8.4(4)(f) of Direction No 99). They are both mature enough to comprehend the Applicant’s situation and for their views to be taken into consideration.
  15. There is no evidence that the children have been or would be exposed to any risk of family violence, neglect, nor that they have experienced physical of emotional trauma from the Applicant’s conduct (para 8.4(4)(g) and (h) of Direction No 99).
  16. I find that it is also in the best interests of these children for the Cancellation Decision to be revoked. Turning to the weight:

The Applicant’s step-nephews

  1. The Applicant’s step-nephews, Z (aged four) and AB (aged two), live on the Gold Coast. There is minimal information about these two children before me.
  2. The parents of the children have been named by the Applicant, and so I infer that the children have two parents to care for them (G39/193).
  3. In his personal circumstances form, the Applicant stated that he does not speak to the children because his step-brother “lives in Queensland and I haven’t got his phone on my prison call list” (G39/194).
  4. Given the lack of information about these children, there is insufficient information to make an informed decision about their best interests.

Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)

  1. A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
  2. 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.

204. 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. This includes family violence offending and the serious drug offence of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”. 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).

  1. 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]).
  2. 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.
  3. 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:

  1. 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.
  2. 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.)

  1. 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), including “acts of family violence” (8.5(2)(a)). The Applicant has committed family violence offences including “unlawfully assault and thereby did bodily harm with circumstances of aggravation” and two counts of “common assault in circumstances of aggravation or racial aggravation” which falls within this category as raising serious character concerns.
  2. 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.
  3. 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.
  4. I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.

OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)

  1. 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)

  1. Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under ss 501 or 501CA of the Migration Act.
  2. 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.
  1. 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.
  2. 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]).
  3. 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.

  1. 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.
  2. 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)

  1. 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

  1. any social, medical and/or economic support available to them in that country.
  1. The Applicant is 31 years of age.
  2. He has not identified any physical or mental health issues.
  3. The Applicant has lived in Australia for the last 12 years, since he was 19 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 a lengthy amount of time. The Applicant has travelled back to New Zealand several times since he started living in Australia and so it is not an unfamiliar country (transcript/19-20).
  4. The Applicant’s grandmother lives in New Zealand (transcript/20). The Applicant said that “there’s not much of a relationship” with his grandmother in New Zealand. They appear to have had a falling out because the Applicant’s grandmother criticised him for having his mother help him with her son by taking him to day-care each morning (transcript/93). The Applicant’s evidence was that she is on a pension and would not be able to give him financial support. There is an email from the Applicant’s grandmother dated 8 May 2022 in support of the Applicant being able to remain in Australia. The email also states that she and her husband are in their seventies and eighties and “are unable to provide the required support”. I infer from the context of the email that she is referring to being unable to provide assistance with accommodation or financial support (G45/223). When asked if his grandmother may be able to offer him some social or emotional support if he is returned there, the Applicant stated, “I don’t see how she would help me” (transcript/94). Overall, it is unclear if the Applicant’s grandmother would be able to offer him any emotional or social support if he was returned to New Zealand.
  5. All the Applicant’s immediate and extended family and friends are in Australia, including his mother, sister and brother in law, adult step-daughter his minor son and nieces and nephews. The Applicant is very close to his mother and his children. The family history is tragic. As I have discussed above, the Applicant’s partner was killed in the car accident in January 2016 after her vehicle was struck by a drunk driver. The Applicant’s two children were in the car and witnessed their mother dying. That accident started the Applicant down the self-destructive path of methamphetamine addiction, which led to the Applicant’s prison sentence and the cancellation of his Visa. The Applicant is regretful and remorseful for the emotional impact his addiction and offending behaviour have had on his children. If he is returned to New Zealand, he is likely to be separated from his children, which will cause him significant emotional detriment. Even if his minor son was to return to New Zealand with him, the Applicant would face the stress of trying to provide for his son without family support and his son being separated from his sister. Either situation is likely to result in the Applicant suffering emotional detriment if he is returned to New Zealand.
  6. In a general sense, 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]). However, the Applicant developed a significant methamphetamine addiction after his partner was killed and is likely to need additional support in the community to prevent a relapse to drug use.
  7. In his report dated 11 December 2023, Dr Watts stated (A1/9-10, para [29]):
    Most of the rehabilitation which the Applicant has undertaken has been short to medium courses, and could be replicated elsewhere. However, for the rehabilitation to be successful, ideally, people need an extended support network. As far as I understand it, he has an aged grandmother in New Zealand. The bulk of the immediate family are in Australia. Relocation away would be extremely difficult for him. Further, the negativity of being away from family, children, and other members of his support network is likely to then increase his vulnerability, thus increasing the likelihood of relapse.
  8. The Respondent submitted that the Applicant could still engage with his support network via electronic means, which is likely to be better than the access he had to them whilst in prison (RSFIC, para [75]). However, prison is a restricted environment and being in the community as a returnee is likely to pose significant impediments in accessing any supports via electronic means or otherwise. There is also insufficient evidence upon which I can conclude that the Applicant could easily access supports in that manner, or the effectiveness of doing so as opposed to having support persons directly available to him in person. I therefore accept the opinion of Dr Watts. Thus, even though the Applicant would have access to medical supports in New Zealand, he requires an extended support network, which will not be available in New Zealand. Thus, based on Dr Watt’s opinion, being returned to New Zealand (together with the negative impact that being separated from his mother and one or both children), is likely to negatively impact the Applicant’s rehabilitation.
  9. The Applicant has also worked in New Zealand before he came to live in Australia. He worked in welding and heavy fabrication between the ages of 15 and 19 (transcript/19). His status as a returnee with a criminal record may make it more difficult for him to find work and to support himself.
  10. I find that there are impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to New Zealand that may be very difficult for the Applicant to overcome.
  11. Consequently, I find that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.

Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)

  1. 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.
  1. 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 on CF who was a victim of the Applicant’s domestic violence related offending.
  2. Consequently, this other consideration should be given neutral weight.

Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)

  1. 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.
  1. This consideration does not arise on the material before me and is therefore not relevant.

THE WEIGHING EXERCISE

  1. The Applicant does not pass the character test under s 501 of the Migration Act.
  2. 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.
  3. For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
  4. I made the following findings with respect to the other considerations that were relevant. These were:
  5. I have weighed the primary and other considerations against each other and after doing so, I am of the view that the expectations of the Australian community, when weighed against the remaining primary and other considerations, particularly when compared to the first primary consideration of protection of the Australian community, should be weighed moderately, instead of strongly, against the revocation of the Cancellation Decision. I am otherwise satisfied that the weight I have assigned to the remaining primary and other considerations is appropriate.
  6. Overall, I find that the primary considerations of the best interests of the Applicant’s nine-year-old son KT, and the strength, nature, and duration of the Applicant’s ties to Australia, which both weighed very strongly in favour of the revocation of the Cancellation Decision, were determinative. The extent of impediments if removed other consideration, which weighed strongly in favour of the revocation of the Cancellation Decision, further added to the overall weight being in the Applicant’s favour. So did the best interests of the Applicant’s nephew, J, and niece, AH, which both weighed moderately, and the interests of his nieces K and AM, which both weighed slightly in favour of revocation of the Cancellation Decision. I find that the considerations that weighed in favour of the revocation of the Cancellation Decision outweighed the considerations that weighed against the revocation of the Cancellation Decision. Those were the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community which each weighed moderately against the revocation of the Cancellation Decision.
  7. In summary, I am satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.

DECISION

  1. The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 November 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 246 (two hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..................[Sgd]..........................................
Associate

Dated: 1 March 2024

Date of hearing:
16 and 17 January 2024
Representative for the Applicant:
Ms J Angel, Estrin Saul Lawyers

Representative for the Respondent:

Ms D Jones-Bolla, Sparke Helmore Lawyers

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