Afamiliona and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 131

Afamiliona and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 131 (25 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9019
Re:Atinae Afamiliona
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

Decision
Tribunal: Mr S Evans, Member
Date of decision: 25 January 2023
Place:Sydney

The decision under review, being the decision of a delegate of the Respondent dated 2 November 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is affirmed.
.................[Sgd].....................................................
Mr S Evans, Member
Catchwords
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked - best interests of minor children - family violence – impact on victims – where victims expressed desire for Applicant to remain in Australia – Direction no. 90 considered – reviewable decision affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
FYBR v Minister for Home Affairs [2019] FCAFC 185
Re Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 88
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
10 February 2023
Mr S Evans, Member

Antinae Afamiliona (the Applicant) is a 57 old citizen of New Zealand who first came to Australia on 4 September 2003 when he was 37 years of age[1], and permanently settled in Australia in March 2007 at the age of 40.[2] On 26 May 2020 the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) following a conviction for cause grievous bodily harm to a person with intent (DV).[3] The Applicant seeks review of the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY, Subclass 444) visa (the visa) under subsection 501CA(4) the Act.[4]
[1] G29/151
[2] G20/102
[3] G5/23
[4] G2/7
For the reasons which follow, the reviewable decision was affirmed on 25 January 2023.
BACKGROUND
The Applicant was born in Samoa and migrated with his family to New Zealand in 1991. The Applicant and his wife, Tiperia Afamiliona, have three children. Falenuutupu Afamiliona born in 1997, AJ born in 2001[5] and AF who was born in May 2005 and is a minor.[6] All reside in Australia.
[5] G20/108
[6] G20/104
On 29 August 2016 the Applicant struck his wife repeatedly with a machete following an argument (the GBH offence). She sustained serious injuries.[7] The Applicant was held in custody from 30 August 2016[8] before pleading guilty in the Campbelltown Local Court to cause grievous bodily harm to a person with intent (DV) on 15 March 2017. On 21 September 2017 the Applicant was sentenced to 9 years imprisonment by the District Court of NSW.[9]
[7] ST1/2
[8] ST8/26
[9] ST11/52
The Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on 26 May 2020 because he had a ‘substantial criminal record’ on the basis of having been sentenced to a term of imprisonment of 12 months or more.[10]
[10] G31/160
On 16 June 2020 the Applicant made representation seeking revocation of the cancellation decision.[11] On 2 November 2022 a delegate of the Minister decided that the power under subsection 501CA(4) to revoke the cancellation under subsection 501(3A) was not enlivened.[12] That same day the Applicant sought review of the delegate’s decision by the Tribunal.[13]
[11] G19/96
[12] G4/22
[13] G2/4
Relevant law and Ministerial direction no. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7) and is serving a sentence of imprisonment on a full-time basis in a custodial institution.
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[14]
[14] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
Issue to be determined
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
As the Applicant was sentenced to 9 years imprisonment on 21 September 2017 I am satisfied he does not pass the character test for the purpose of section 501CA(4)(b)(i) of the Act.
As he does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
EVIDENCE
Evidence of the Applicant
The Applicant gave evidence that he was born in Samoa and the youngest of 14 children in his family.[15] In his Personal Circumstances Form, he identifies that two of his siblings live in Australia, 5 in New Zealand and others in the USA and Samoa.[16]
[15] G26/135
[16] G20/108
As a child the Applicant experienced a violent upbringing, primarily in the context of being disciplined by his parents and older brothers. The violence he experienced growing up led him to accept that violence was a normal part of life. His use of alcohol fuelled this misconception.[17]
[17] G26/135
Since arriving in Australia, the Applicant has been gainfully employed in a variety of businesses including working in a gyprock factory, a steel factory and a mattress production facility.[18]
[18] G20/110
The Applicant regrets his offending. The significant term of imprisonment he received in 2017 taught him a ‘great lesson’. He wishes to rebuild his life and is committed to being a better person in the future. He observed that there is now harmony in his family.
The Applicant confirmed he and his wife intend to maintain their marital relationship. He acknowledged evidence to the contrary including a reference in his June 2020 request for revocation to intending to support his family upon release from prison ‘despite separating from his wife.[19] He explained that he and his wife were separated whilst he was in prison and he had provided his wife the opportunity to make up her own mind about their relationship. It was his evidence that she still felt the love between them and that they a mutual desire to stay together as husband and wife.
[19] G19/97
Evidence of Tiperia Afamiliona, the Applicant’s wife
Mrs Afamiliona provided a written statement dated 11 November 2022 and gave oral evidence at the hearing. Mrs Afamiliona was the victim of the GBH offence and was seriously injured during the attack.
Mrs Afamiliona speaks regularly with the Applicant and forgives him for what he did to her. She believes that ‘when you forgive someone, you forget about the past’.[20] She said that the Applicant found God in prison and changed himself.[21] She explained that as she made a vow and believes in God, she is required to stand by the Applicant and ‘support him all the way’.[22]
[20] Transcript of proceedings dated 12 January 2023, 17
[21] Transcript of proceedings dated 12 January 2023, 18
[22] Transcript of proceedings dated 12 January 2023, 24
It was her evidence that prior to the GBH offence she and the Applicant had a good relationship. The Applicant was a good father and a reliable provider for his family.[23] However, she acknowledged there were some problems between them and that occasionally the Applicant would become angry and ‘unable to handle himself’.[24]
[23] Statement of Tiperia Afamiliona dated 11 November 2022, 1
[24] Transcript of proceedings dated 12 January 2023, 17
Asked if she believed that the Applicant still had anger issues, Mrs Afamiliona expressed confidence in his ability to manage his emotions. When she and the Applicant speak, she occasionally ‘tests him’ by saying things that would make him angry. She explained the Applicant now knows how to ‘come back’, which gives her confidence he has changed. [25]
[25] Transcript of proceedings dated 12 January 2023, 20
Mrs Afamiliona gave evidence that she always believed she and the Applicant would stay together and it was never her intention to separate from the Applicant - even in the immediate aftermath of her being attacked.[26] She considers him to be a loving husband, whose anger made him do things he is ‘not supposed to do’.[27] She told the Tribunal:
Because what I believe, in God, when I - when you say you forgive someone, God can hear what I say, so I don’t have to do anything else, that means I’m lying or I’m not telling the truth. I believe in my heart that he change [sic] and he will continue doing the right thing to go forward.[28]
[26] Transcript of proceedings dated 12 January 2023, 22
[27] Transcript of proceedings dated 12 January 2023, 23
[28] Transcript of proceedings dated 12 January 2023, 23
Mrs Afamiliona is confident that the Applicant will not reoffend. In questioning she confirmed that the Applicant is a loving father and even in the immediate aftermath of the attack on her, she trusted that the Applicant would not harm their children.[29] She said that she forgave him shortly after he attacked her and regularly visited the Applicant in prison and detention.[30]
[29] Transcript of proceedings dated 12 January 2023, 22-23
[30] Transcript of proceedings dated 12 January 2023, 20
Life without the Applicant has been difficult for Mrs Afamiliona and her family, and she needs his support. She wishes for him to help with their grandson and wants their future grandchildren to be with both her and the Applicant.[31]
[31] Statement of Tiperia Afamiliona dated 11 November 2022, 1-2
Mrs Afamiliona also misses the Applicant and fears for the mental and emotional health of her and her children should the Applicant be returned to New Zealand.[32]
[32] Transcript of proceedings dated 12 January 2023, 20
Evidence of Falenuutupu Afamiliona, the Applicant’s daughter
The Applicant’s eldest child Falenuutupu Afamiliona provided statements dated 10 October 2022 and 11 November 2022, and gave oral evidence at the hearing.
She believes that the Applicant’s most recent offending occurred at a low point in his life. She describes her father as having had an abusive childhood and believes he was remorseful and understood his actions were wrong immediately after the 2016 offence.[33] She describes how her father has changed and become more approachable and understanding during his time in prison.[34] Her father’s absence has had a detrimental emotional and financial impact on her and her younger siblings.[35]
[33] Statement of Falenuutupu Afamiliona dated 11 November 2022, 1-2
[34] Statement of Falenuutupu Afamiliona dated 11 November 2022, 2
[35] Statement of Falenuutupu Afamiliona dated 11 November 2022, 4
At the time of writing her statement, Falenuutupu was pregnant with her own son and deeply desires to have both her parents present to support her. She also believes it is important that her son has a grandfather who is present in his life.[36]
[36] Statement of Falenuutupu Afamiliona dated 11 November 2022, 4
Should the Applicant’s visa remain cancelled she fears for his mental health and wellbeing. She worries about him being alone if he is made to return to New Zealand.[37]
[37] Statement of Falenuutupu Afamiliona dated 11 November 2022, 5
Falenuutupu was 18 years old when the Applicant was imprisoned. She confirmed that the Applicant would reside with her, her fiancé and their son should he be released back into the community.[38]
[38] Transcript of proceedings dated 12 January 2023, 10
At the hearing, she confirmed having been physically disciplined by the Applicant as a child, but stressed such discipline was infrequent, proportional and appropriate and only occurred when she ‘did something wrong’.[39] Asked about the Applicant’s alcohol use, she confirmed that he drank regularly and normally by himself.[40] She gave evidence that the Applicant ‘understands his limits’ and that his drinking was in part to ‘numb’ his ‘underlying traumas’.[41]
[39] Transcript of proceedings dated 12 January 2023, 9
[40] Transcript of proceedings dated 12 January 2023, 9
[41] Transcript of proceedings dated 12 January 2023, 12
Falenuutupu has faith in the Applicant’s reform and has come to believe that incarceration was what he needed to change. Without the Applicant, her family will always miss a piece. She witnessed the Applicant’s remorse and has every confidence his experience in recent years including his studies in prison have rehabilitated him. His relationships have changed for the better as has his perspective on life. She observes that he understands that as a parent his role is to ‘build a foundation for [his] children’s futures, not the other way around.’[42]
[42] Transcript of proceedings dated 12 January 2023, 11-12
Character references
The Applicant has provided character references and letters of support from members of his family, friends and community.
In a statement dated 3 January 2023 the Applicant’s son AJ writes his father has had time to reflect while in prison, has made positive changes in the way he interacts with others and notes the positive impact his release would have on the Applicant’s family.
Reverend Faafetai Ioane Fale writes from New Zealand that he has known the Applicant for 9 years and considers him a respectable, generous and hardworking person.
In a character reference dated 17 November 2022, Falenuutupu’s fiancé Jared Teli writes that he has a great relationship with the Applicant whose imprisonment has been devastating for their family. He speaks of the Applicant’s contribution to the family, his rehabilitation and the desire of his children to reconnect with him.
In a character reference dated 12 November 2022, Josie-Lisa Faitotoa-Asa, who is a friend of the Applicant’s daughter Falenuutupu, writes of his growth and remorse for his offending.
Family friend Marie Gago writes that the Applicant’s family has forgiven their father and support him throughout his journey.
Millie Afamiliona is the Applicant’s niece and lives in New Zealand. She writes of the Applicant’s difficulties and her belief that he is now on a mission to do right by others including his children. The Applicant’s sister Pesaleli Manuo also resides in New Zealand and describes her brother as a ‘man who would always put others before himself’. She believes he has changed since his offending.
Primary consideration 1 – protection of the australian community from criminal or other serious conduct

The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s criminal history includes that on 15 March 2011 he was convicted of common assault (DV).[43] The police fact sheet relating to this conviction records that the Applicant slapped his then 5 year-old daughter AF across the face before he proceeded to grab 'hold of the Victim by her pony tail and pull her along through the buffet area'.[44] At the hearing the Applicant gave evidence that alcohol played a role in the offence.
[43] G6/39
[44] ST3/13-14
On 22 June 2011 the Applicant was convicted of drive with low range PCA.[45] During the hearing the Applicant was taken to NSW Police records which state he told officers he had consumed 12 cans of VB the night prior to being breath tested.[46] The Applicant confirmed that this was an accurate account of events and that he was driving his son to sport when he was tested.
[45] G6/39
[46] ST1/7
On 19 February 2013 the Applicant was convicted of contravene prohibition/restriction in AVO (Domestic), Stalk/intimidate intend fear physical etc harm (domestic) and destroy or damage property (DV).[47] The police facts sheet relating to this conviction sets out that on 16 February 2013 the Applicant verbally abused his wife for approximately 40 minutes and then 'threw a glass bottle to the ground causing it to smash'. Another bottle was smashed by the Applicant during the incident which took place in the presence of the Applicant’s then 15 year-old daughter. The victim also expressed fear for her safety as previously the Applicant had ‘slammed a knife onto the bed’ when threatening her.[48]
[47] G6/39
[48] ST1/5-6
The Applicant was sentenced to a 12-month S9 bond, and required to obey directions for counselling, educational development or drug and alcohol rehabilitation.[49]
[49] G6/39
The Applicant explained during the hearing that he had generally complied with the AVO and had returned to pick up some belongings unaware the order prohibited him from approaching the family home. The Applicant could not recall the exact events of 16 February 2013 but the police records indicate that he was ‘affected by alcohol’.[50]
[50] ST1/6
The GBH offence
On 21 September 2017 the Applicant was convicted of cause grievous bodily harm to person with intent (DV) and was sentenced to a term of imprisonment of 9 years with a 6 year non-parole period.[51]
[51] G6/38
The sentencing remarks of Acting Judge Grogin in the District Court of NSW set out the agreed facts, including that the Applicant and Mrs Afamiliona were arguing over their relationship following comments being made to the Applicant by Mrs Afamiliona’s mother. Both the Applicant and Mrs Afamiliona were in his car when Mrs Afamiliona told the Applicant she thought it was best they separate to give them both some time to consider their relationship.[52]
[52] G9/45
The Applicant pulled the car over and Mrs Afamiliona exited the vehicle to hail a taxi. The Applicant then tried to force her back into the car after which:
[The Applicant] produced a 45 centimetre long machete which he kept under the driver’s seat floor mat. The [Applicant] started to strike the victim with the machete. She extended her arms to protect her head and she was struck repeatedly with the machete by the offender. The victim fell to the ground next to the car and attempted to crawl under it for protection. The [Applicant] continued striking her with the machete. She was struck to the feet and back of her legs. The [Applicant] struck the victim at least ten times. She was hit in the arms, hands and legs. The [Applicant] stated “This is what you want” during the attack.[53]
[53] G9/46
Acting Judge Grogin detailed Mrs Afamiliona’s injuries:
As a result of the attack the victim sustained the following injuries to her right hand and arm: partial amputation of the index finger; complete amputation of the little finger and multiple finger lacerations; 2 to 3 centimetre laceration over the elbow extending through the epidermis and dermis into the elbow joint and fracturing a small fragment of the proximal ulna; 50% triceps tendon laceration; 3 centimetre laceration over the elbow extending through the epidermis, dermis and forearm muscle mass; 5 centimetre oblique laceration over the dorsal ulna surface of the wrist extending through the epidermis, dermis, facia and causing an oblique fracture of the distal ulna, shearing fracture of the radius and extending into the wrist joint.
In relation to her left hand and arm: a de-gloving of a large portion to the skin, a 7 centimetre laceration over the ulna extending through the epidermis, dermis and facia causing an underlying segmental fracture of the ulna and multiple lacerations of the forearm and hand. To her right leg a 25 centimetre posterolateral laceration through the epidermis, dermis and facia extending down to the lateral muscles.
To her left foo[t] an amputation of the left great toe at the base of the toenail; an amputation of the second toe halfway and a laceration over the left lower leg extending through the epidermis, dermis, facia, tendon and into the bone. There was a sharp fracture fragment in the left calcaneus.
These injuries required surgery. Hand injuries including tendons were cleaned and repaired by hand surgeons. Amputations were formalised and plate and screw fixations were applied to the left ulna, right ulna and right radius.[54]
[54] G9/46-47
He described the attack as ‘brutal, unprovoked, unabated, unrelenting and vicious and a ferocious and terrifying ordeal with gross brutality’.[55]
[55] G9/53
The Applicant explained to the Tribunal that the events were due to jealously on his part and an inability to compose himself. He accepts that Mrs Afamiliona will need to live with the injuries he caused for the remainder of her life which would act as a constant reminder of how wrong his actions were.
Other conduct
A New Zealand police certificate records that the Applicant received a number of traffic convictions including drive whilst disqualified, driving in a dangerous manner and drink driving prior to his immigration to Australia.[56] The Applicant explained that some of these offences occurred as he was required to drive to work.
[56] G7/40
On 7 occasions the Applicant claimed that he did not have criminal convictions in his incoming passenger cards. In a written submission made to the Department he explained ‘he had wrongly assumed [he] was only required to declare serious offences which involved jail time’.[57] During the hearing he added that he was unaware that driving offences counted towards a criminal record. However, he acknowledged this understanding was mistaken and apologised for his behaviour.
[57] G27/137
Having regard to the Direction, the Applicant’s offending must be regarded as very serious as he has been convicted of crimes of a violent nature against women and children and these convictions were acts of family violence. The Applicant has four separate family violence convictions beginning in 2011. The offending has escalated in seriousness and the harm inflicted. The seriousness of the injuries inflicted on the Applicant’s wife during the GBH offence and the fact that previous family violence offending was directed at – or occurred in front of – a minor child makes the offending all the more serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The Respondent contends that there is a real risk that the Applicant will engage in further criminal or other serious conduct. As much of the Applicant’s past offending has been domestic violence or family violence, I accept that the potential harm to individuals and the Australian community is serious should he engage in such conduct again.[58] Such offending causes substantial physical and psychological harm to members of the Australian community as well as a significant financial cost to the community associated with law enforcement and the courts.
[58] Respondent’s Statement of Facts, Issues and Contentions dated 20 December 2022 (RSFIC), [27]
The Applicant contends that being imprisoned was a positive and transformative experience for him. He has used the opportunity to control his behaviour and to become a better person. Whilst in prison and immigration detention, the Applicant has completed courses to help him to manage his anger and to maintain harmony in his family. In a letter dated July 2020 the Chaplain of the Dawn De Loas Correctional Centre, Reverend Michael Wells, writes of the Applicant’s regular participation at chapel services. Reverend Wells also observed the Applicant’s remorse for his previous approach to life, controlling behaviour and alcohol use and cites feedback from group facilitators noting the Applicant’s honesty, his beneficial contributions to group sessions and the positive effect he had on other inmates.[59]
[59] G24/127
The courses completed by the Applicant include the EQUIPS Foundation Program in September 2019,[60] EQUIPS Domestic Abuse Program in July 2019,[61] and the EQUIPS Addiction Program in December 2019.[62] He states that he now has a ‘think before I react’ policy which he practices and claims to be ‘a much calmer person now’.[63] He gave evidence that the strategy provides more space to think about the consequences and identify alternative courses of action before making a decision.
[60] G21/118
[61] G21/119
[62] G21/120
[63] G20/109
During the hearing the Respondent’s representative took the Applicant through the courses he had completed and asked what he had learnt from them. He said that the courses had given him strategies for controlling anger which included to walk away, to learn how to forgive and to show true love. He has learnt to be patient and control himself to maintain peace.
The Applicant undertook courses in relationships, anger management and domestic violence in November and December of 2022. He maintains that until recently he was unaware he could undertake the courses. He denied completing the courses in response the delegate’s decision not to revoke the cancellation of his visa.
The Respondent contends the evidence indicates that prior to the GBH offence, much of the Applicant’s offending was related to his use of alcohol.[64] His New Zealand police clearance includes several convictions for driving under the influence. A pre-release report prepared by Justice NSW dated 20 May 2022 (pre-release report) observed that while the Applicant did acknowledge the negative impacts alcohol has on his life, he did not identify alcohol as a contributing factor to his offending.[65]
[64] RSFIC, [28]
[65] ST13/57
A Community Offenders Services Probation and Parole Service Court Duty Officer’s Report dated 19 February 2013 states that the Applicant ‘admitted to a history of problematic alcohol consumption of up to 20 standard drinks…on a single occasion’ but had not engaged in any form of meaningful intervention.[66]
[66] ST12/53
When the Applicant appeared in the Local Court Campbelltown Magistrate O’Brien told him that he drank ‘[w]ay too much’.[67] It was the Applicant’s evidence that he subsequently sought counselling to address his alcohol use through a counselling service in Minto. However, he does not remember how many times or for how long he attended counselling.
[67] G8/42
For his part, the Applicant gave evidence that he started to drink alcohol when age 18 and would drink twice each month. He would drink both out of and at home. Over time his drinking became more frequent and he would mostly drink on his own. He would often drink at the end of the week to unwind. He said that it was unclear exactly what influence alcohol had on his offending but in retrospect he believed that his offending could be partly attributed to alcohol and the abuse he experienced as a child.
The Applicant had stopped drinking for a period around 2006 and 2007 and claims to have stopped again approximately a year prior to the 2016 offending.[68] He has not consumed alcohol since. The Applicant explained he had no intention to resume drinking and that he had come to realise that alcohol contributed to the trouble he had experienced. He said that he had also sought guidance from his Church and gave evidence of having received counselling from suitably qualified parishioners.
[68] G6/136
The Applicant has demonstrated some insight into his offending. Notably he observed in correspondence dated 22 June 2021 that there was a history of violence in his family and that consequentially violence had become normalised, and that it was his responsibility to ‘break this cycle of violence’ and show his children it is unacceptable.[69]
[69] G28/144
The Applicant has expressed his remorse for his offending and in particular the devastating impact it has had on his family.[70] However, I note the 20 May 2022 pre-release report records that the Applicant ‘appeared to shift some blame onto his wife’ for his offending.[71]
[70] G20/108
[71] ST13/56
During the hearing the Applicant was taken to a Statement of Facts for Sentence document where it is recorded that he stated during the GBH offence he experienced a ‘black out in my mind’ and that a ‘a dark thing come to me and block my mind’ [sic].[72]
[72] ST10/31
He was asked to explain what he meant by that statement, to which he gave evidence that it felt like he was dreaming but that he was not dreaming. He said it was the first time that he had experienced that particular sensation, but that when he was young he had a similar experience after being physically abused by his older brother.[73] Should he experience the sensation in the future, the Applicant was confident that he would be able to manage the consequences due to the strategies outlined above and the support of his family.
[73] Transcript of proceedings dated 12 January 2023, 3
Asked if he had sought any professional help, the Applicant told the Tribunal that he had seen a psychologist and a psychiatrist in the week prior to the hearing. No evidence of having done so was presented nor were any oral submissions made in relation to the treatment received.
In his 2017 sentencing remarks, Acting Judge Grogin stated that the Applicant’s ‘prospects of rehabilitation are guarded but not hopeless’. He observed that the Applicant would have ‘remarkable support…available upon his release’, notably his supportive family and strong community.
The pre-release report states that the Applicant received excellent reports whilst in prison.[74] He was assessed to be at a low risk of reoffending according to the Level of Service Inventory – Revised. The report also confirms that the Applicant and his family maintained contact throughout his incarceration and the Applicant could expect continued support from his family upon his release.
[74] ST13/62
Conclusion as to the protection of the Australian community
The Applicant has expressed a desire to do better and achieve positive things for his family and the community. I accept the Applicant is remorseful for his offending and that he is genuine about his intentions to support his family. The evidence supports a conclusion that he is driven by a desire to make up for lost time with his family and the harm caused by his offending.
He has identified protective factors including the courses he has completed, his family and how he experienced significant personal and transformative change during his lengthy term of imprisonment. His claims in this regard are supported by the many character references from both friends and family attesting to the changes they have observed in the Applicant since the GBH offence.
I accept the Respondent’s contention that the Applicant’s reform remains untested and many of the protective factors that he has idented – including his family – were present prior to his most recent offending. The Applicant claims to understand his anger and to have put in place measures which would prevent him from reacting to events which may previously have instigated an unthinking reaction or further offending. However, I have significant reservations about the measures he has taken to prevent further offending.
In relation to his claim to have received counselling following the 2013 conviction, the Applicant’s evidence was vague. He was unable to recall meaningful detail regarding his treatment including how he benefitted. His oral evidence is not supported by documentary evidence of him having received counselling.
Since the GBH offence, it appears the Applicant has not sought psychiatric, medical or other professional interventions which may reduce the risk he may reoffend, or experience what he referred to as a blackout. I am also mindful that the Applicant’s offending behaviour has proven resistant to previous interventions by the courts.
The Applicant’s case for having rehabilitated relies largely on the observations of others, notably his wife and eldest daughter. Both gave evidence of his having changed significantly since the GBH offence. Mrs Afamiliona stated she was confident the Applicant was now able to manage his anger and Falenuutupu believes that incarceration had rehabilitated him. Whilst I accept their evidence as genuine and based on their own observations and understanding of his rehabilitation since his imprisonment, I am mindful that both expressed a belief that the Applicant did not pose a risk to anyone other than Mrs Afamiliona in the immediate aftermath of his offending. His daughter confirmed that she was prepared to have the Applicant live with the family if granted parole in 2016 and Mrs Afamiliona confirmed she was not prepared to leave the Applicant prior to him being sentenced. Mrs Afamiliona made a submission to the Court seeking a ‘lenient and favourable outcome’ for the Applicant and acknowledged that she had played a part in the ‘unfolding of this unfortunate nightmare’.[75]
[75] G9/56
The evidence supports a conclusion that neither his wife or daughter considered the Applicant was at serious risk of reoffending even before he was sentenced for the GBH offence in 2017. To my mind this indicates that their support for the Applicant was largely unconditional, and their evidence regarding the salutary impact of prison and associated rehabilitation in reducing the risk of reoffending is appropriately afforded less weight.
Considering the totality of the evidence, I consider there is a real risk that the Applicant may reoffend. Given the seriousness of his past offending, the level of risk the Applicant poses to the community weighs heavily against revocation.
PRIMARY CONSIDERATION 2 - Family violence

The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
Family violence is defined in Part 4 of Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The Applicant has been convicted of serious domestic violence offences which are outlined above. I accept the Respondent’s contentions regarding the offences being both frequent and of increasing seriousness.
Family violence is to be viewed very seriously and therefore this primary consideration weighs heavily against revocation.
primary consideration 3 - BEST INTERESTS of MINOR children
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant and his wife have three children together, two of whom are no longer minors. The Applicant’s minor child AF has provided a written statement dated 11 November 2022 in which she states that her father ‘plays a massive role’ in her life and is encouraging and supportive of her. She writes that when visiting her father in prison the correctional officers would remark on how the Applicant has changed. She is confident that he will not reoffend.[76]
[76] Statement of AF dated 11 November 2022, 1
Having her father absent since she was in year 6 has saddened AF and she hopes he will be able to attend her high school graduation in person.[77] Should the Applicant be released back into the community she plans to live with him.[78]
[77] Statement of AF dated 11 November 2022, 1
[78] Statement of AF dated 11 November 2022, 2
It is accepted by the Respondent that the Applicant and his minor daughter have a loving relationship, that they continue to maintain contact and that the Applicant was the primary provider for his family.[79] However, the Respondent contends that this consideration should be afforded limited weight in light of the nature of the Applicant’s offending against the child’s mother and AF when she was age 5. It is also argued that less weight should be afforded to this consideration as AF will cease to be a minor within months of the Applicant being released back into the community.[80]
[79] RSFIC, [38]
[80] RSFIC, [40]
The Applicant gave evidence that if the visa cancellation is not revoked the relationship between he and his children would be broken and his family dismantled.
The Applicant’s eldest daughter Falenuutupu Afamiliona has a three-month-old son who she maintains would be negatively impacted by his grandfather’s absence. The Applicant has expressed a desire to play an active part in his grandson’s life. However, I note that as his grandson was born whilst the Applicant was in immigration detention there has been limited interaction between them. It is not contended that he would fulfill a parental role for the child. Nonetheless, I consider it is in the child’s interest that the Applicant remain in Australia.
Considering all these matters, I am satisfied that the best interests of both minor children weigh in favour of revoking the mandatory cancellation decision.
primary consideration 4 - Expectations of the AUstralian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
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.
In FYBR v Minister for Home Affairs[81] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[81] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
It is well established relation to this primary consideration the Tribunal’s role is to identify the government’s view of community expectation and have due regard to it.[82] It was submitted by the Respondent that media coverage of the GBH offence demonstrates not only the significance and seriousness of the offending, but also that it is unacceptable to the Australian community.[83] I accept this argument only in so far as the Applicant’s offending is inconsistent with the expectations of the Australian community as set out in paragraph 8.4 of the Direction which include that the commission of serious crimes against women or children and crimes of a violent nature are ‘serious crimes’.
[82] Re Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 88, [126]
[83] RSFIC, [45]
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
Other considerations
Impact on victims
Paragraph 9.3 of Direction 90 requires me to consider the impact of section 501CA decisions on members of the Australian community, including victims of the non-citizen’s behaviour and the family members of the victim, ‘where information in this regard is available and the non-citizen … who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
The Applicant’s wife was the primary victim of Applicant’s offending. In her recent statement and oral evidence to the Tribunal she spoke of her forgiveness towards the Applicant and her intense desire for him to remain in Australia. The Applicant’s youngest daughter, who was the victim of the 2011 common assault offence, also strongly supports the Applicant remaining in Australia.[84]
[84] See Undated Statement of AF at G23/124-125, and Statement of AF dated 11 November 2022
Mrs Afamiliona has difficulty working as a consequence of the injuries she sustained in the 2016 attack upon her. There is significant evidence of the emotional impact the Applicant’s absence has had on Mrs Afamiliona and her children. It is expected that this would be exacerbated should the visa cancellation not be revoked. I consider there is significant evidence that the Applicant’s removal would have a deleterious emotional and financial impact on both the victims of his offending.
In Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[85]Perram J observed that where family members are also the victim of an applicant’s crimes, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap, as they do in this matter I am mindful of the requirement not to double-count factors relevant to both considerations.
[85] [2020] FCA 646, [26]
I am satisfied that the strongly held views of Mrs Afamiliona and AF make this a relevant consideration which weighs in favour of revocation and I afford it moderate weight.
Extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
The Applicant lived in New Zealand until the age of 40 and I am satisfied he would not face any language or cultural barries should he return.
He is currently 57 years old and does not submit he suffers from any health conditions which would prevent or limit his ability to re-establishing himself in New Zealand or maintain a basic living standard in the context of what is generally available to other citizens in New Zealand. Some of the Applicant’s family members – including his wife, daughter and sister - have expressed concern about his mental health should he be returned to New Zealand.[86] Though there is no medical evidence regarding the Applicant’s mental health before the Tribunal, I accept he would find it emotionally challenging in the absence of his very supportive wife and children.
[86] See Undated Statement of Millie Afamiliona, 2; Statement of Falenuutupu Afamiliona dated 11 November 2022, 4-5; Transcript of the proceedings dated 12 January 2023, 14, 20
The Applicant has extended family in New Zealand including a brother. He has provided letters for support from Lio Afamiliona and Millie Afamiliona, both of whom reside in New Zealand. The Applicant also has 3 uncles and aunts, as well as numerous cousins, nieces and nephews who may be able to assist him in New Zealand.[87] Whilst the Applicant submits he has a distant relationship with his family in New Zealand, he has returned to New Zealand on at least 5 occasions, which indicates an ongoing connection to the country.
[87] G20/108
Overall, I consider this consideration weighs in favour of revocation and is afforded moderate weight.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia for 16 years and as such is entitled to some weight under subparagraph 9.4.1(2) of the Direction.
As outlined in paragraphs 26 to 47 above, there is significant evidence that the cancellation of the Applicant’s visa would be detrimental to his immediate family including his wife and three children. I note that the Applicant’s daughter Falenuutupu stated she was required to work from age 18 in order to support her family financially after her father’s imprisonment[88] and the Applicant’s wife states that both she and her children need the Applicant’s support.[89]
[88] Statement of Falenuutupu Afamiliona dated 11 November 2022, 3
[89] Transcript of proceedings dated 12 January 2023, 20
The Applicant notes that he has a solid record of employment, has paid taxes throughout his time in Australia and made a contribution to the community notably through arranging sporting activities and his Church.[90] The character references he has provided include statements of support from friends and family members in Australia who would also be negatively impacted by the Applicant’s return to New Zealand.[91] Two of the Applicant’s sisters reside in Australia in addition to aunties, uncles, 4 nieces and nephews and 4 cousins and would be expected to be affected by his removal.[92]
[90] G20/111
[91] See, for example Character Reference of Pafiakitivo Vaitoe dated 10 November 2022 and Character Reference of Merrytiana Tuia dated 15 November 2022
[92] G20/108
For these reasons, I am satisfied that this consideration weighs in favour of revocation, and is afforded moderate weight.
CONclusion
The Applicant’s offending is very serious and includes escalating acts of family violence. It is to the Applicant’s credit that he has demonstrated a willingness to engage in rehabilitation and whilst there is significant evidence of the Applicant’s remorse and change, it is largely anecdotal and remains untested in the community. For the reasons set out above, the primary considerations relating to the protection of the Australian community, family violence and expectations of the Australian community weigh heavily against revocation and are afforded significant weight.
The best interests of the Applicant’s youngest child and his grandson are served by revocation of the cancellation decision and this primary consideration is afforded considerable weight. The consideration relating to the impact on victims weighs in favour of revocation, particularly in light of Mrs Afamiliona’s oral and written evidence and AF’s written evidence and this consideration is given significant weight in the Applicant’s favour. The impediments to his return to New Zealand weigh in favour of revocation but to a limited extent given he has relatives living in New Zealand who he is in contact with and his overall good health. The Applicant’s links to the Australian community are afforded significant weight in favour of revocation, particularly given his extensive family connections.
On balance, I find that the weight of the considerations set out in Direction 90 weigh in favour of affirming the reviewable decision.
Decision
For the reasons above, the decision under review, being the decision of a delegate of the Respondent dated 2 November 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is affirmed.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of

.............................[Sgd]...........................................
Associate
Dated: 10 February 2023

Date(s) of hearing: 9 and 12 January 2023

Applicant: In person

Solicitors for the Respondent: Ms S Frankel, Minter Ellison

Date(s) of hearing:	9 and 12 January 2023
Applicant:	In person
Solicitors for the Respondent:	Ms S Frankel, Minter Ellison