TRIBUNAL DECISION
42 The Tribunal's reasons begin with an assessment of whether the applicant fails the character test under s 501(3A)(a) of the Act through the operation of s 501(6). The Tribunal summarises the applicant's relevant convictions and terms of imprisonment (D[17]-[18]). The Tribunal finds that the applicant has a substantial criminal record under s 501(7)(c), being sentences comprising over 400 days, and that therefore the first limb required for mandatory cancellation of a visa was satisfied (at D[19]).
43 Before the Tribunal considers whether there is "another reason" the cancellation decision should be revoked, the Tribunal examines whether the applicant was serving a sentence of imprisonment at the time of the cancellation decision, so as to satisfy the second limb required for mandatory visa cancellation:
22. Mr Nuuamoa's evidence was that on 21 October 2020, which is the date he completed the prison sentence imposed by the Court, he had expected to be released. He was processed by the corrections authorities at the prison and readied to leave. He said he was then asked to wait in a cell. The Applicant said that officers of the Australian Border Force ('ABF') then arrived. He was given a letter notifying him that his visa had been cancelled. These ABF officers then took him into immigration detention.
23. The Tribunal was concerned on the evidence that Mr Nuuamoa may have, in fact, completed his prison sentence when the decision to cancel his visa was made and the notice (dated 21 October 2020) was served, which would mean that section 501(3A)(b) was not satisfied. The advice from Corrections Victoria was that he completed his most recent period in full-time prison custody on 21 October 2020. After this query was raised, the Respondent offered to provide a written submission on this question by the end of 8 September 2021, which was done.
24. That written submission of the Respondent relevantly said:
At 9.06am on 21 October 2021, a Department officer contacted Port Phillip Prison and confirmed the applicant was currently serving a prison sentence. (G Documents, page 321 (G321)).
25. … It is not plausible that the email making the inquiry could have been sent, that the Victorian authorities could have checked their prisoner records and responded, and that the one page file note could have been written - all within one minute. It also appears not to have been the prison where Mr Nuuamoa had been serving his sentence that was emailed but an administrative area of the Victorian Justice Department.
26. …The evidence of the Applicant that he had been processed in the usual manner as he had completed his sentence is plausible, as is his evidence that, after completion of this release procedure, he was then asked to go and wait in a cell.
(Emphasis in original.)
44 The Tribunal then summarises the law as understood at the time by reference to the decisions in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619. In those matters, this Court found that the validity of a mandatory cancellation decision under s 501(3A) of the Act was not a condition precedent to the Tribunal's exercise of its powers under s 501CA(4) whether to revoke that decision. Accordingly, the law at the time was that the Tribunal could exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) of the Act notwithstanding any purported invalidity of that decision. On that basis, the Tribunal found that "notwithstanding doubt that I have about the validity of the visa cancellation, I find that does not affect my duty to consider the application Mr Nuuamoa has brought to the Tribunal" (at D[30]).
45 The Tribunal then sets out the applicant's offending history. Relevant to the grounds of review, in addition to violence and criminal damage, burglary and theft, drug and driving offences, the Tribunal notes:
the February 2019 charge for Contravene Family Violence Intervention Order (at D[43]); and
the April 2019 conviction for Contravene Family Violence Intervention Interim Order (at D[44]).
46 In D[49]-[90], the Tribunal summarised the oral evidence given during the hearing before it by the applicant, his partner Ms ES, and his sister Ms AN. Relevant sections are set out below:
Mr Nuuamoa
59. Mr Nuuamoa agreed that Child Protection authorities became involved with his family in 2016 because he had a fight with Ms ES. He said: "She wanted to kick me out. We were fighting over the kids. We had a scuffle."
60. Mr Nuuamoa agreed that he attempted to strangle Ms ES in the scuffle and that their oldest daughter tried to intervene and "I shoved her".
61. The applicant could not remember whether Ms ES obtained an Interim Family Violence Order but agreed that it was in place for around 12 months and it prohibited him from visiting the family home. He said he stayed with his parents at this time.
…
63. When asked about a 2018 incident where he visited the family home and Ms ES would not allow him to come in, but did allow him to stay in the garage, Mr Nuuamoa said he remembered the events. The next day they took the oldest daughter to school together, with the younger two children in the car. Mr Nuuamoa said: "We had an argument. I hadn't slept for days. She pulled over. I grabbed my son and shoved her head and hit the car."
64. Mr Nuuamoa agreed that on this occasion he punched a window of the car, causing it to smash and that the other two children were in the car at the time (the eldest child having been dropped at her school). The Applicant agreed that an Interim Family Violence Order was taken out a few days later and that he was arrested when he breached its conditions and was caught outside a friend's house talking to Ms ES.
65. [The Minister's representative] read to the Tribunal a report of the Applicant visiting the family home in breach of the interim intervention order and Ms ES talking to him but refusing to open the locked security door. A short time later Ms ES told police she heard bins being moved and she was worried Mr Nuuamoa might be attempting to use the bin to gain access to the property, so she dialled '000'. The police attended but were unable to locate Mr Nuuamoa. Several days later the Applicant was arrested and made full admissions to the police about breaching the order.
66. Mr Nuuamoa agreed that this led to the imposition of a full Family Violence Intervention Order ('IVO').
…
73. Mr Nuuamoa said that if allowed to stay in Australia he would move in with his sister, Ms AN, who has offered him work. He said the IVO still applies and he would have to undertake whatever is required by Child Protection before he could reside with the children again.
…
Ms ES
82. Ms ES said Mr Nuuamoa first started using 'ice' around 2010 but not 'as severely' as he started to in 2016. She said that she first experienced acts of family violence from the Applicant in 2010 but at that time they were brought about through intoxication, rather than drug-taking.
83. She said there were no instances of family violence when Mr Nuuamoa was not affected by drugs and alcohol.
84. Ms ES said it was in 2016 that Child Protection first became involved with the family after an incident where Mr Nuuamoa 'tried to strangle me'. She said their oldest daughter intervened because she was trying to defend her mother.
85. Ms ES was asked about the 2018 incident in the car and said both her younger children witnessed it and it was a 'really bad altercation'. She said it has had a lasting effect on their oldest daughter because 'violence has taken over the good memories.'
86. Ms ES said she would not have concerns with Mr Nuuamoa spending time with their children now...
87. She said that the orders still adhering mean that if the Applicant was released into the community, he cannot live with her or the children. Ms ES thought he would only be able to see the children if another person was present, and might have to submit to random urine tests, as she had to before the custody of the children was restored to her.
88. Ms ES said that if Mr Nuuamoa relapsed into taking drugs, he would have no contact with the children or with her, and that her support for him was conditional on him being willing to engage with treatment.
89. Contrary to the evidence of Mr Nuuamoa, Ms ES said she had spoken to the Applicant about what would happen if his visa was not restored. She told the Tribunal that it was up to the children if they wanted to relocate to New Zealand in that eventuality. Ms ES said she would not be willing to go to New Zealand until Mr Nuuamoa could provide evidence to her of a safe and settled household, and he could provide for them.
90. Ms ES said that if they did not relocate and Mr Nuuamoa was back in New Zealand, she would 'definitely' take the children to visit him. She said in answer to direct questions from the Tribunal that she would put the interests of the children first. Ms ES said: "If he keeps away from friends, he can be a better person. He has been clean in prison and detention and has decided not to go back."
47 The Tribunal then turns to consider the factors in Direction 90. In relation to the seriousness of offending, the Tribunal finds that "it is clear to me that the Applicant has been involved in violent offending, including causing serious injuries to complete strangers" and "significant property theft", with "some trend of increased seriousness" (D[105]-[107]). In relation to the risk to the Australian community from further offences, the Tribunal finds:
110. If the Applicant committed further acts of random violence, there would be a clear risk to innocent members of the community going about their daily lives. Mr Nuuamoa said that he has grappled with, and submits he has largely overcome, his alcohol addiction. He did say he still will when in the community consume some alcohol. It would seem to me that he has a specific and serious problem with anger management, as his sister Ms AN acknowledged. I was not convinced that he has a sure plan to tackle that in the community, though he did say he intends to seek out 'counselling.'
48 The Tribunal acknowledges (at D[111]) that the applicant has undertaken vocational and trade, drug and alcohol education, anger management and other personal development courses. The Tribunal goes on to say:
111. …This shows a willingness to engage, albeit these are very short courses available in detention. Balancing that is evidence that he failed to address his drug and alcohol addictions under [Community Control Orders] in 2019 and 2020 and told the Department of Health and Community Services (SGD, p 664) that when he exited remand he had determined that he would remain 'clean' but then caught up with friends to celebrate his release and lapsed again into taking 'ice'.
112. In the hearing, the Applicant asserted that he considers himself 'rehabilitated' and said that he had deleted the numbers of certain of his friends from his mobile phone. This does imply to me that he considers, probably accurately, that he is vulnerable to reverting to criminal behaviour should he encounter these associates again. …
113. I believe Mr Nuuamoa has voiced good intentions, but not that he has set out an established plan to deal with the challenges that face him. His sister has offered him employment and accommodation, which is a positive and protective element, but I do not have sufficient information before me of the steps that the Applicant himself has mapped out. He said in his written statement… that he would seek relationship counselling with a psychologist, which shows a willingness to address the nature of his relationship with Ms ES and their children, but that does not indicate to me an appreciation of the other parts of his offending history, and how to address his vulnerabilities to re-offend.
114. One of the problems that the Applicant admitted was his addiction to methamphetamine. He told the Tribunal of a history of taking 'ice' from 2010 which only ceased on him entering prison in 2019. …
115. On the evidence before me, I consider there remains a real risk that Mr Nuuamoa would reoffend, either in a domestic situation, in the wider community, or both. It is a real risk that I am satisfied is an unacceptable one. This primary consideration therefore weighs relatively strongly against revoking the mandatory cancellation of the visa.
49 In D[117]-[118], the Tribunal summarises the requirements of Direction 90 in relation to family violence before setting out the following:
119. As mentioned above, Mr Nuuamoa has been convicted by the Courts of breaching IVOs, a fact he freely admitted in the hearing. The Tribunal also has regard for summonsed documents from the Child Protection Subpoena Unit of the Victorian Department of Families, Fairness and Housing which records three reports in the period 2016-17 relating to the Applicant perpetrating family violence towards Ms ES and regularly using methamphetamine. The document relevantly states, with appropriate redactions:
On 07 September 2019, Child Protection received a report of a significant family violence incident between Mr Nuuamoa and [Ms ES] which the children were exposed to and attempted to intervene. During the incident Mr Nuuamoa punched and broke the car window the children were sitting in and attempted to flee with [the child M]….
A full exclusion Intervention Order was already in place listing the father as the respondent and the children and the mother as the protected persons. Throughout the Protective Intervention the father continued to have contact with the children and the parents continued to use illicit substances.
120. In a separate report from Child Protection it states, in respect of previous advice Ms ES had given to them:
The mother disclosed to CP at the time that the father is a drug user, and there is a pattern of significant physical assaults (choking, kicking, punching, stalking and threats to kill) from the father when he is "coming down" from ice. The children were reported to have witnessed ongoing family violence, previous to a very significant incident on 12/04/2016 where the father was choking the mother in front of the children. [The child L], who was just 11 at the time, tried to physically intervene to protect her mother, and she was assaulted too. The father then locked himself and [the child M] in the garage for half an hour. At the point of CP closing involvement, the children were having no contact [with the father] and the mother stated she was not intending to reunite with the father.
…
With regards [sic] to the father's drug use, it is demonstrated during previous protective involvement that his drug use is associated with a high level of violence, so continued drug use whilst having contact with the children raises significant concerns.
121. The Tribunal considers that the evidence in the criminal history check and the summonsed documents from Child Protection indicate that there has been a history of family violence, with some cumulative effect. It is notable that Ms ES told Child Protection of a 'pattern of significant physical assaults' prior to the 2016 incident which was the subject of a report. ... Mr Nuuamoa did continue to breach orders that he knew were in place to protect his partner and children.
122. I am not convinced that the Applicant demonstrated to me a full appreciation of the effect his actions may have had on the children; he tended in his evidence to link all this conduct to his 'ice' addition. While there clearly was a strong link, it does not excuse his conduct in physically assaulting Ms ES and - whether advertently or not - his young daughter L, when she tried to protect her mother. It is also clear from Ms ES's evidence above that family violence incidents had occurred from around 2010, but she dated his more severe addiction to 'ice' from 2016, when the first family violence incident came to the notice of Child Protection. Ms ES suggested the earlier family violence was precipitated by Mr Nuuamoa's drinking, not his drug-taking.
123. Although there are protective measures to separate the Applicant from Ms ES and the children should he be released to the community, there is a pattern of him ignoring such orders before. On the evidence before me, I am satisfied that this primary consideration weighs strongly against revoking the mandatory cancellation of the visa.
50 In relation to the best interests of children, the Tribunal finds as follows:
126. Mr Nuuamoa confirmed in his evidence at the hearing that in one family violence incident where he attempted to strangle Ms ES, his elder daughter, L, attempted to intervene and he 'shoved' her away. He also confirmed that in a second incident when he and Ms ES had taken L to school and dropped her off, and then had an argument in the car, both T and M were present. He confirmed that as part of the dispute he tried to get M from the vehicle, while Ms ES tried to keep him inside the car, and that he resorted to punching the window of the car, causing it to smash.
127. Ms ES gave frank evidence that the effect of the incident where L was pushed away has stayed with her elder daughter, and to some extent submerged the more positive memories L had of her father. Ms ES also said that she would have no concerns, now, about Mr Nuuamoa being with the children; she did not think he would harm them.
128. In the extensive summonsed material from Child Protection, as mentioned there is reference to three reports to Child Protection between April 2016 and September 2017. Concerns were raised regarding the Applicant perpetrating family violence towards Ms ES and substance abuse by both Mr Nuuamoa and Ms ES.
129. A "full exclusion Intervention Order" was in place listing Mr Nuuamoa as the respondent and Ms ES and the three children as the protected persons. As mentioned above, Mr Nuuamoa continued to breach the Order. Child Protection recorded that the oldest child, L, told officers she felt "upset and frightened at witnessing her father being violent."
130. I note, and take into account, a letter dated 4 November 2020 that L sent to the Department in support of the restoration of her father's visa, in which she states she does not believe her father would be a danger to the Australian community.
…
132. The Respondent submitted that the Tribunal should find that it is in the best interests of the Applicant's children for Mr Nuuamoa's visa not to be restored, because of the past incidents of family violence. After careful thought, I am not prepared to make such a finding. While the family violence incidents are clearly very serious and both occurred in the full view of young children, there is other evidence from Ms ES and Ms AN, and the Applicant himself, of a good relationship with his children. Admittedly his contact more recently has been through telephone and video calls, but there was no evidence that this more recent contact has not been harmonious. It may be that the driver of the family violence was a combination of the Applicant's alcohol and 'ice' additions, and his poor anger management.
133. I make a determination that it is in the best interests of the Applicant's three minor children that the cancellation of the visa be revoked, but the weight that I attach to that is significantly lessened by the incidents of family violence to which the children have been exposed, and the enduring effect on them, especially L. The weight is also lessened because current Court orders prevent the Applicant living with the children, as he confirmed in his evidence. The Respondent submitted that Mr Nuuamoa would be able to maintain contact with his children through electronic means, as he does at present, if he was repatriated. I accept that as far as it goes but acknowledge that such arrangements are no substitute for personal contact, even supervised personal contact.
51 The Tribunal then goes on to assess the other considerations in Direction 90. The Tribunal finds, in summary, that the expectations of the Australian community weighs relative strongly against revocation; the extent of impediments to resettlement in New Zealand weights very slightly in favour of revocation; the impact on Australian business interests weighs in favour of revocation; and gives the other considerations neutral weight.
52 In its Conclusion section, the Tribunal finds as follows:
167. In respect of the slight weight given to the primary consideration relating to the best interests of minor children, I make clear that the usual approach of the Tribunal is to weigh very strongly the parental link between children and a parent. However, this is a case where there has been a history of family violence, mainly involving the Applicant's de facto partner, but also affecting the children. The Applicant made no attempt to minimise his past actions, but that candour does not make his conduct other than reprehensible. I note that Ms ES was adamant in answer to a question in the hearing that she would take their children to visit Mr Nuuamoa if his visa was not restored and he settled in New Zealand. Ms ES also did not close off the idea of moving with the children to New Zealand once Mr Nuuamoa had obtained employment and accommodation and established a base that she considered would be safe and secure for them.
53 Accordingly, the Tribunal decided to affirm the decision of the delegate not to revoke visa cancellation.