501 reprieve: Man who only lived in NZ for one year allowed to stay in Australia after 'savage' attack

A man behind bars for the past seven years after an attack that left another with brain damage has won a reprieve from being deported to New Zealand. Photo / 123RF

A 40-year-old New South Wales man who has spent the past seven years behind bars following a robbery so violent the victim suffered permanent hearing and vision loss was set to be deported to New Zealand despite having spent only a year of his life in Aotearoa.

But the Administrative Appeals Tribunal - considered one of Australia's last chances for those who have been denied citizenship or ordered deported under the nation's 501 immigration policy - has issued a reprieve, allowing him to stay in his adopted homeland with his Australian wife and children.

The man, whose name has been redacted from publically accessible documents, received word that the deportation had been overturned two weeks ago.

The decision, authored by tribunal member Louise Bygrave following a hearing in Sydney last month, notes that the man still doesn't pass the "character test" and places little weight on the fact he lived in New Zealand only between the ages of 16 and 17. But it placed heavy significance on the fact his two youngest children would be harmed if he was sent away permanently.

"Despite the applicant's incarceration and detention for almost seven years, he has maintained a very close and significant parental relationship with his sons," Bygrave noted.

The man spent most of his childhood in Western Samoa, where he was born, before moving to New Zealand at age 16 to live with his aunt and uncle. The family then moved to Australia in 1999, when he was 17. He met his wife a year later and the couple now have four children aged 11, 12, 19 and 21.

During his two decades in Australia, the man has held steady work in a variety of fields including as a machine operator, distributor, forklift driver, and owner/manager of a restaurant, the tribunal noted. He had two convictions in 2004 for driving under the influence of alcohol or drugs and domestic violence, but neither resulted in jail time.

He caught the attention of immigration authorities in 2017 after jurors in New South Wales District Court found him guilty at the conclusion of a two-week trial of robbery in company causing grievous bodily harm. He was sentenced to eight years and one month in prison, where he stayed until granted parole in May 2021.

Since then, he's been incarcerated at the Villawood Immigration Detention Centre awaiting the outcome of his deportation case.

According to court documents, the man along with his brother and their cousin robbed a man in his 30s in a dark, isolated industrial area in August 2015 after watching him win over $3000 from a pokie machine earlier in the night.

"The assault itself was savage," the tribunal noted. "[The applicant] hit the victim with a piece of wood. Once he fell to the ground [the applicant] hit him with a wooden stool, breaking the stool. He then stomped on the victim's head two to three times."

The deportation candidate was the sole person who administered the beating, while another of the men stole the wallet, authorities noted.

"The offenders made no attempt to get medical treatment for [the victim]," the tribunal noted. "He was left lying in the gutter in an isolated industrial area in the early hours of the morning on a weekend."

As a result of the beating and the "moderate" brain injury it caused, the victim has permanent deafness in one ear and now requires hearing aids. He also must now wear glasses.

A 501 deportee is put on a plane to New Zealand. Photo / Australia Department of Home Affairs file image

Speaking to the tribunal via audio-visual link, the man acknowledged he administered the beating but denied having a plan that night to commit robbery. He said he had been binge drinking all day after attending his son's Saturday morning sporting event. The victim had offered them a lift home and had crashed in the process, causing an argument that led to a fist fight, he said, adding that he didn't recall using a piece of wood or a stool.

"I have significant difficulty accepting the applicant's version of what occurred," Bygrave said in her report, noting that the jury verdict relied in part on CCTV footage.

The man was arrested in October 2015, two months after the attack, and stayed incarcerated while awaiting trial. But during his lengthy behind bars he has been described as a model prisoner - "respectful and polite towards staff", "keen to work" and "a mentor and an essential element in the development of other inmates".

He was described by the judge who sentenced him as "unlikely to re-offend".

Despite his incarceration for the past seven years, he was described by his wife as an "amazing father" who has managed to stay active in their children's lives as much as possible given the circumstances. Because their youngest child has a congenital heart defect, it would make it nearly impossible for the family to move with him to New Zealand, she told the tribunal.

"He has the same two doctors since he was born; they are the only ones that know him," she said of her son. "Just the simple echo [echocardiogram] that he goes for each year is quite difficult to take because his heart is not in the right position; it is upside-down, to the side – it's hard to explain.

"To be able to find doctors in New Zealand with the same care – I would not risk that. I know [the applicant] wouldn't want us to risk that either."

She added: "Everything is here. Our whole life is here. Our household, our memories – everything is still here in Australia and... there is just no way that we could move over there."

The tribunal agreed she shouldn't have to and as a result, neither should her husband, despite earlier decisions to the contrary.

"I am satisfied the cancellation of the applicant's visa would be severely detrimental to his two youngest sons and have a profoundly negative impact on both these minor children," Bygrave wrote.