Afegogo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Afegogo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4448 (23 December 2022)
Division:GENERAL DIVISION
File Number: 2022/8178
Re:Moeilesami Moegatuli Afegogo
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:23 December 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 September 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
........................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Temporary Work (International Relations) (Class GD)(Subclass 403) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Minister for Home Affairs v Buadromo (2018) FCR 320
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Table of Contents
Introduction and background
Legislative Framework
Primary Consideration 1: Protection of the Australian Community
Primary Consideration 2: Family Violence
Primary Consideration 3: The Best Interests of Minor Children in Australia
Primary Consideration 4: Expectations of the Australian Community
Other Considerations
Conclusion
Decision
Annexure A
REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 December 2022
Introduction and background

Moeilesami Moegatuli Afegogo (‘the Applicant’) is a 27-year-old male, born Samoa in April 1995. He arrived in Australia on 25 May 2021 as the holder of a Temporary Work (International Relations)(Class GD)(Subclass 403) visa (‘the visa’). He has never departed Australia since his arrival.[1]
[1] 501G documents (G1- G17), G13, p 88.
On 14 February 2022, the Applicant was convicted of Reckless Wounding and received a sentence of 16 months’ imprisonment with a non-parole period of 9 months. This is the single entry in the Applicant’s criminal history in Australia.[2]
[2] G6, p 27.
Consequent upon the imposition of the abovementioned sentence, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) did, on 24 February 2022 mandatorily cancel the Applicant’s visa. This cancellation was effected by virtue of the fact that the Applicant did not pass the character test due to his compilation of a substantial criminal record pursuant to paragraphs 501(6)(a)( and (7)(c) of the Migration Act 1958 (Cth) (‘the Act’). While the Applicant was serving that sentence, a delegate of the Respondent mandatorily cancelled his visa because the Applicant did not pass the character test as he was serving a full-time custodial sentence.
The Applicant was invited to make representations in relation to a possible revocation of the Respondent’s mandatory cancellation decision. The Applicant duly made those representations on 17 March 2022.
There followed a decision by a delegate of the Respondent on 29 September 2022 to refuse to revoke the initial mandatory cancellation decision made on 24 February 2022. This decision involving the refusal to revoke the mandatory cancellation was handed personally to the Applicant on 3 October 2022.[3] This means that upon application of the expedited 84 day timeframe appearing at s 500(6L)(c) of the Act, the Tribunal must make a decision in this matter on or before 26 December 2022.
[3] G17, p 122.
The instant application was lodged on 5 October 2022 wherein the Applicant seeks to overturn the delegate’s decision (made on 29 September 2022) refusing to revoke the mandatory cancellation decision (originally made on 24 February 2022). The Hearing of the instant application proceeded before me on 19 December 2022. The Hearing received both oral and written evidence. The written evidence was reduced to an agreed exhibit list. A true and correct copy of this is attached to these reasons and is marked ‘Annexure A’. Oral evidence was received from the Applicant and his domestic partner, Ms Alice Connors.
Legislative Framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
‘…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…’[5]
[4] (2018) FCR 320.
[5] Ibid, para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. This phrase, in turn, is defined in s 501(7) of the Act, which relevantly provides that a person will have a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
There is nothing to cavil with the proposition that the Applicant does not pass the character test. I am satisfied that the imposition of the abovementioned 16 month head custodial term on 14 February 2022[6] causes the Applicant to have a, substantial criminal record.[7] Accordingly, he does not pass the character test. He therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[6] Section 501(7)(c) of the Act.
[7] Section 501(6)(a) of the Act.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[8]
[8] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
‘Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’[9]
[9] Direction 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). The principles are:
1Australia 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 frameworks, and will not cause or threaten harm to individuals or the Australia community.
2Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’[10]
[10] Direction 90, para [8].
The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:
‘a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests’[11]
[11] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(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; and
(3) One or more primary considerations may outweigh other primary considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
Primary Consideration 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Overview of the Applicant’s offending
As mentioned earlier, the Applicant has the singular conviction for offending in Australia. At the sentencing hearing on 14 February 2022, the Applicant was legally represented.[12] Before the sentencing judge was an agreed set of facts which was referred to and taken into account in the sentencing process.[13] It is worth quoting those agreed facts in full for the purposes of these reasons.[14]
[12] G7, p 29.
[13] Ibid.
[14] G9, pages 70-71.
Agreed Facts
Rv MOEILESAMI MOEGATULI AFEGOGO
Justicelink No 2021/00183849
Offence Section 35(4) Crimes Act 1900 - reckless wounding
Background
1.The Moeilesami MOEGATULI AFEGOGO, offender, is a Samoan national and is in Australia on a visa to work here as part of a Pacific Island Working Scheme. Junior MULIPOLA IONE, the victim is a part of the same scheme and is also from Samoa. The offender and victim were not known to each other before coming to Australia.
2. They were both employed at the Junee Prime Lamb and resided at the Locomotive Hotel in Junee. The victim lived in Room 5 and the offender lived in

Room 6.
Reckless Wounding
3. On the afternoon of Friday, 25 June 2021 the victim returned from work to his residence. He went about some chores in the area, had a shower and changed from his work clothes. He attended the offender's room where he saw Mahonri LESA, Kofe LELEFU and the offender drinking beer. He did not want to stay so went to the downstairs bar area of the hotel.
4. The victim was not sure of the time he went downstairs but stated it was dark. He consumed approximately 10 to 12 alcoholic drinks, mixed spirits and beer, while downstairs at the bar .
5. At about 8:30pm that night the offender arrived downstairs in the bar area and continued to drink alcoholic drinks. He was observed on CCTV footage to have consumed no less than 12 alcoholic drinks, and also mixing his drinks, which included spirits and beer. At the bar the victim told the offender to go back to the hotel as some people at the bar were upset with him. The victim said that they were upset because he had been consuming their drinks without permission. The offender did not leave at this time.
6. Sometime after 10pm both the offender and the victim have separately returned to the upstairs accommodation area. A fight broke out between the offender and victim about the kitchen area of the accommodation. LESA, LELEFU and TOFI intervened in this fight and pulled the offender and victim away from each other. During this fight both men were physical with each other, and the offender
sustained a cut above his left eye during this fight. After being· separated the victim and offender returned to their respective rooms.
7. At some point, the offender has re-entered the kitchen and picked up a serrated, bread knife and made his way back to the victim's bedroom. When the victim spoke to police, he said that the offender had entered his room on two more occasions and tried to continue the altercation prior to returning with a knife.
8. The offender stabbed the victim in the back, under the armpit and caused a laceration to the back of the victim's neck. The victim fell back onto his bed after being stabbed the first time and yelled out words to the effect of "I'm hurt".
9. LESA, LELEFU and TOFI have heard the victim and entered Room 5. The offender was observed to be standing in the room still holding the serrated bread knife. LESA and TOFI have disarmed the offender and LELEFU has called Triple Zero at 1:21am on Saturday, 26 June 2021.
10. The witnesses have provided first aid to the victim until emergency services have arrived. Wh)le waiting for ell')ergency services, one of the witnesses observed the offender kneel beside the victim, apologise to him and tried to help him by putting something on the victim's chest.
11. Sergeant WHITE is the first police officer on scene and ordered all persons upstairs to come downstairs. The offender is identified by witnesses and handed Sgt WHITE a passport in his name contained in a bag he was carrying.
12. The offender was arrested and transported to Junee Police Station.
13. The victim was taken to Wagga Wagga Base Hospital by ambulance. At the Hospital, the victim was taken into the Operating Theatre and his injuries were washed out and stitched.
14. Doctor Steven SCHUCHTEMEIER described the wound near the underarm to have penetrated 'into the next layer of underlying fat but not further'. Doctor SCHLICHTEMEIER describes the wound on the back as having 'penetrated through the underlying fat and also just through the next layer, the fascia surrounding the chest wall muscle'. Dr SCHLICHTEMEIER stated that no critical structures were involved and the right lung/lung cavity was not reached.
15. The offender was also taken to Wagga Wagga Base Hospital for treatment to the cut above his left eye. Dr Ian Clare found of the offender's injuries, a large left periorbital haematoma with laceration inferior to eyebrow and an equivocal non-displaced fracture of the right and left nasal bone. His wound was cleaned and he received sutures to close the skin flap.
16. Upon release from hospital the offender was offered the opportunity to participate in an interview with police. This was conducted with a Samoan interpreter and a support person, Papu TAULELEI.
17. The offender made the following admissions:
a. That he didn't intend "that would happen# (i.e. stabbing the victim) and that he is remorseful and he apologised to the victim;
b. He admitted to fighting with the victim in the kitchen prior to the stabbing;
c. When asked about the injury to his left eyebrow, he told police that he believed that the victim must have used "something solid" in his hand to cause what he thought was a "crack eye";
d. That after he and the victim were separated after the fist fight, he was so angry because"/ was hurt on my eye, that's when I grab a sharp item"
e. That when he grabbed the knife, he did not intend to use it but he did;
f. He agreed that after he got the knife from the kitchen area, he went after the victim. He states that he did not mean to stab the victim, he did not know what he was going to do with the knife and does not know why he did it.
Consideration of Paragraph 8.1.1

The nature and seriousness of the Applicant’s conduct is to be analysed through the lens of the elements contained in paragraph 8.1.1 of the Direction. The chapeau to paragraph 8.1.1(1)(a) refers to types of crimes or conduct that are viewed ‘very seriously’ by the Australia government and the Australian community. The relevant element for instant purposes is to be found at paragraph 8.1.1(1)(a)(i). Specifically, the Applicant’s abovementioned unlawful conduct committed on 25 June 2021 is undoubtedly a crime of violence. As such, his offending must be found to be very serious.
The chapeau to paragraph 8.1.1(1)(b) refers to crimes or conduct which may be considered ‘serious’. On the facts before the Tribunal none of the Applicant’s conduct involves the commission of the crimes described in sub-paragraphs 8.1.1(1)(b)(i), (ii) and (iv). With specific reference to paragraph 8.1.1(1)(b)(iii), which refers to ‘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’, there is nothing before me from either party propounding or otherwise making reference to this component of the Direction. I am satisfied it is not relevant.
The following component of paragraph 8.1.1 is 8.1.1(1)(c). It precludes me from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[15] (2) acts of family violence;[16] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[17] The Applicant has no convictions for this type of offending.
[15]    Direction No 90, para [8.1.1(1)(a)(ii)].
[16]    Ibid, para [8.1.1(1)(a)(iii)].
[17]    Ibid, para [8.1.1(1)(b)(i)].
Be that as it may, his offending committed on 25 June 2021 and the sentence imposed is not excluded and therefore does fall within the auspices of this paragraph 8.1.1(1)(c). On 14 February 2022 the Applicant received a head custodial term of 16 months. While not necessarily extreme or substantial in terms of length of time, the sentence is nevertheless custodial in nature and, as such, represents the last resort in the sentencing hierarchy. It logically follows that the imposition of a custodial sentence must be viewed as a reliable reflection of the objective seriousness of the offence sought to be punished.[18]
[18] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].
I conclude that the imposition of the 16-month head custodial term on the Applicant is a factor that militates in favour of a finding that his offending has been at least serious, more likely very serious. I so find.
Paragraph 8.1.1(1)(d) points a decision maker at the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. The Applicant has just the one conviction on his offending history. There is, accordingly, no frequency to his offending nor any detectible trend of increasing seriousness behind it. This paragraph is not relevant. A similar finding can be made in relation to paragraph 8.1.1(1)(e) which relates to the cumulative effect of a non-citizen’s repeated offending. With only the one conviction on his record it is impossible to discern any cumulative effect of any repeated offending. This paragraph is also not relevant.
I have carefully reviewed the material and cannot glean any suggestion of conduct by or behalf of the Applicant involving the provision of false or misleading information to the Respondent’s Department including any non-disclosure around his past offending. Accordingly paragraph 8.1.1(1)(f) does not apply to the instant determination. Likewise, paragraph 8.1.1(1)(g) does not apply to the instant determination either. The Applicant began offending very soon after arriving in Australia and there was not, as it were, any ‘lead time’ (or equivalent) facilitating the Applicant’s build-up of a profile of offending such as to spawn a warning of the type contemplated by paragraph 8.1.1(1)(g). It is not relevant to the instant determination.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied the relevant paragraphs at paragraph 8.1.1(1) of the Direction to the evidence around the Applicant’s offending in Australia. Taking into account my findings in relation to each of those relevant paragraphs, I conclude (and find) that the totality of his unlawful conduct in Australia must be found to be ‘very serious’. For completeness, I make reference to a document from the Samoan Ministry of Police that is dated 25 April 2022.[19] This document certifies that the Applicant ‘…has no previous convictions [in Samoa] as to the date of issuance of this report.’[20]
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[19] G11, p 86.
[20] Ibid.
Paragraph 8.1.2(1) of the Direction provides that, in considering the risk to the Australian community, a decision-maker 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. Significantly for present purposes, some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
It is not necessary recount in any graphic detail the circumstances of the Applicant’s singular, but very serious, episode of offending conduct in this country. It suffices to say that he attacked a victim with a bread knife, stabbing that victim in the back, under the armpit while also causing a laceration to the back of the victim’s neck. It is no exaggeration to suggest (and find) that the Applicant was fortunate the damage he caused to the victim could have been significantly more serious and, quite conceivably, even fatal.
Extreme violence of this nature and level is not to be tolerated. To my mind, this type of violence – perpetrated under the disorienting influence of intoxicating liquor – makes it all the more dangerous. As such, it must be found to be conduct that, if repeated, either in identical or similar terms, is totally unacceptable to the Australian community. The Australian community will not tolerate conduct where one person unilaterally acts to either critically injure or imperil a life of another.
Little or no elaboration is required on the nature of the harm to individuals or the Australian community were this Applicant to re-offend. A victim could quite conceivably be killed and the community’s policing, medical and judicial sentencing resources would be required to deal with the consequences of such conduct. I am satisfied that were this Applicant to
re-commit his unlawful conduct in this country, it would result in physical and psychological harm to a victim. It is not a stretch of the evidence to suggest and find that any recommission of such unlawful conduct could result in fatal consequences for a victim.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
Evidence of the Applicant
In a statement before the Tribunal the Applicant spoke of certain regret he was experiencing as a result of his offending in these terms:
I have to live with this for the rest of my life and so does he, I put fear and pain on him and I would give anything to take that away from him and his family.
After we stopped fighting, I saw him on the ground and I didn't even know what I had done, I cannot remember what happened because everything go blank and all I saw was him hurt, I fell down and told him I was sorry, and I tried to help him. I never wanted to do this to anyone, I still don't know why or how I did this but I know I don't ever want to do this again to anybody.
I don't ever want to drink anymore because the bad memories that I have from that night always play in my mind.
I did Anger Management and Drug and Alcohol courses when I was in prison, because I had to learn what I did and I never knew any of that before. In my culture so many people just drink and do stupid things because we don't know any better, and I know that is not excuse, but I learned and can see that this is not good for me or anyone.[21]
[21] A6.
The material also contains reference to certain courses completed by the Applicant during his time in immigration detention. They include courses in anger management[22] and drug and alcohol abuse.[23] In his Personal Circumstances Form (‘PCF’) the Applicant referred to these online courses in the following detail:
[22] A4.
[23] A5
‘If you have completed any courses or programs that will help you to avoid further offending, provide details of these and attach evidence.
My time spent in detention at Villawood Immigration Centre, I have completed online
courses provided by the centre which consists of the following:
• Drug and Alcohol Abuse 101
• Anger Management 101
• Domestic Violence 101
• Stress Management
• Anxiety Therapy 101
I believe the course that I have obtained above has helped me to identify and manage my time in detainment. These course have helped me to understand my actions and the choices that I had made in the past which led to my incarceration on a full time basis.
Having a new found respect and mindset, I believe the tools in each of the course contents will help me develop more on Australian society and assimulate [sic] within the Australian Community helping me to understand Australian core values.’[24]
[Underlining in original omitted, emphasis in original]
[24] G10, p 81.
In his oral evidence before the Tribunal the Applicant confirmed participation in, and completion of, certain courses during his time in immigration detention. He said those courses assisted him in learning to control his anger and how to avoid abusing alcohol. Despite the language difficulty, he told the hearing that he nevertheless understood what was being told to him during these courses which ran for about a week to a week and a half in duration. He also told the Hearing that he was still undertaking an anger management course which he had not yet completed. He said that this particular course was conducted under the auspices of the Saint Matthews Anglican Church (Parish of Guildford). He said that he has been attending this course every Wednesday and that he started an involvement with this course ‘about two months ago’.[25]
[25] See Transcript generally, pages 11-13.
The Applicant was questioned about the precise nature and orientation of this course offered by the abovementioned Anglican Church. He appeared to agree that the main orientation of this course was to facilitate a participant’s learning and faith in the Bible as opposed to it having a predominantly therapeutic and/or clinical purpose.[26]
[26] Transcript, p 13.
He further confirmed in his oral evidence that that the abovementioned certificates he obtained in ‘Anger Management 101’ (on 23 April 2022) and ‘Drug and Alcohol Abuse 101’ (on 23 April 2022) were obtained online from an organisation called ‘Universal Class’.[27]
[27] Transcript, lines 5-24, p 13.
(ii) Evidence of the Applicant’s rehabilitation achieved by the time of the Decision
I have recounted the nature and extent of the Applicant’s participation in and completion of programs of rehabilitation referrable to his pre-disposition to abuse alcohol, to resultingly lose control of his moral compass in terms of containing his anger towards others and to then very seriously offend. While not necessarily clinical or therapeutic evidence of his rehabilitation, the Applicant expressed the following remorseful and regretful comments in his PCF:
‘The incident which led to the assault I cannot recall as I was heavily intoxicated. I am ashamed of my actions and the outcome due to my poor decision making. It has never been my intention to physically hurt the victim as I said we were friends. I apologised to the victim in great depth, in which the victim accepted [sic] my apology and remorse.
I am very sorry for my actions and I am deeply remorseful for what I had done.’[28]
[Underlining in original not included]
[28] G1, p 81.
Summary of findings around recidivist risk
The Respondent, in its Statement of Facts, Issues and Contentions (‘SFIC’) helpfully identifies five themes in the evidence that speak to the Applicant’s recidivist risk. First, it is plain that the Applicant does have unresolved difficulties with abusing alcohol. He readily acknowledges that he was heavily intoxicated at the time of the subject offence. He also readily conceded that ‘…he binge drinks alcohol.’[29] There is little or nothing to contend with the proposition (and finding) that alcohol was the main causative agent behind his very serious offending conduct. He says that binge drinking is a means of him dealing with homesickness he is experiencing as a result of his time in Australia away from his family in Samoa.[30] I am not convinced that these feelings of homesickness will dissipate upon a return to the community and, therefore, to the extent that homesickness pre-disposes him to abusing alcohol, this risk will remain live and current.
[29] R1, [26].
[30] Ibid.
Second, it is a matter of concern that the Applicant became so disoriented by alcohol at the time of the subject incident that he (1) attacked the victim without any apparent provocation; (2) did little or no planning around the attack and just committed the offence arbitrarily; and (3) was unable to explain to investigating police why he so brutally and dangerously attacked the victim. In these circumstances, the Applicant’s now-expressed words of remorse and regret must be received with caution as must his words around him representing no future recidivist risk. Put simply, there is no clear or convincing explanation about why the Applicant attacked the victim in the manner he did, neither from the Applicant or an independent clinician reporting on the Applicant.
Third
, it is no small matter that the Applicant was refused bail by the learned judicial officer who dealt with him on the first return date of his criminal matter before the Wagga Wagga Local Court on Sunday, 27 June 2021, which is the following day after the Applicant’s attack on the victim. It suffices to record the reasons for the refusal of bail in full:

‘BAIL DECISION
I have decided to: REFUSE BAIL
‘REASONS FOR DECISION
After considering all the relevant matters, there are 3 considerations identified as relevant in the assessment of bail.
(a) The Accused person’s background, including criminal history, circumstances and community ties. The Accused has been in Australia for approximately a month from Samoa. He is employed. But has no family here. He resides in a pub.
(b) The nature and seriousness of the offence. Very serious matter with potential deadly consequences.*
(c) The strength of the prosecution case. Victim statement, and admissions made.
UNACCEPTABLE RISK/S IDENTIFIED
There is an unacceptable risk that the Accused person, if release [sic] from custody will: Fail to appear at any proceedings for the offence.*
Endanger the victim, individual or the community*’[31]
[Note: the bold font with underlining in each line ending with an asterisk at the end is my emphasis]
[31] S12, pp 20-21.
Fourth, there is no suggestion that the Applicant has been resistant towards participating in rehabilitative courses and activities. Such participation is, or course, at a preliminary stage and in no way can it be found to be determinative of this Applicant’s level of recidivist risk. While one can accept the relative limitations on a non-citizen in immigration detention endeavouring to participate in, and fulfill the requirements of, a rehabilitative process, the fatal difficulty for this Applicant is that all the evidence of his involvement in rehabilitation is from him. There is nothing from an independent clinician telling us (1) the precise nature and scope of any rehabilitative therapy given to the Applicant; (2) the extent to which such rehabilitation has moderated his pre-disposition to abuse alcohol; and (3) the likely prognostic outlook for this Applicant in terms of his difficulties with alcohol, resulting loss of self-control and resulting dangerous conduct that has threatened the life of at least one victim.
Fifth, I have earlier recounted the Applicant’s words of remorse and regret for what he did. While it would be unfair to summarily reject these asserted levels of remorse, regret and insight, the difficulty for the Applicant is that none of it is supported by independent clinical opinion. I will not make a finding that the Applicant’s assertions of remorse/regret are entirely vacuous, self-serving and otherwise propounded merely as a means of securing a positive outcome in the instant application. But I will find that those claims – in the absence of support from those independent of him and the situation giving rise to the offending – must be treated with great caution and, therefore, cannot be relied upon now as a means of speaking to his recidivist risk profile in any meaningful or reliable way.
I am satisfied that the state of the Applicant’s rehabilitation is incomplete and in its formative stages. There is no escaping the very clear theme in the evidence that difficulties with the abuse of alcohol are at the front and centre of the Applicant’s recidivist risk profile. While he has participated – to an extent – with a quite rudimentary rehabilitative scheme to date, none of that has been overseen by a suitably qualified clinician who can now verify to this Tribunal that the Applicant’s pre-disposition to abusing alcohol is under any kind of remedial treatment, management and control. Consequently, there is no reliable prognostic evidence before this Tribunal about the extent to which any rehabilitation will impact on the Applicant’s pre-disposition to abuse alcohol and to very seriously offend. None of the Applicant’s claimed rehabilitation has been tested in the community where alcohol will again be freely available to him.
The only safe finding is that this Applicant’s recidivist risk profile is not capable of now being known and understood with any greater level of certainty than was possible at the time of this most recent removal from the Australian community. It follows that his current recidivist risk profile is now no different from the time of his abovementioned most recent removal. I so find
Paragraph 8.1.2(2)(c)
The Direction also contains a reference to paragraph 8.1.2(2)(c). This specific application , does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1

With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;
(b)I have found that were this Applicant to re-commit his unlawful conduct in this country, it would result in physical and psychological harm to a victim. Further, it is not a stretch of the evidence to suggest and find that any recommission of such unlawful conduct could result in fatal consequences for a victim; and
(c)In terms of his recidivist risk I have found that it is not capable of now being known and understood with any greater level of certainty than was possible at the time of this most recent removal from the Australian community. I have consequently found that his current recidivist risk profile is now no different to what it was at the time of his abovementioned most recent removal.
I make further reference to paragraph 8.1.2(1) of the Direction and, in particular, the notion of ‘unacceptable risk’ which involves a risk that the community should not be required to tolerate regardless of other considerations. Having regard to the potential consequences of this Applicant re-committing the conduct resulting in his conviction on 14 February 2022 together with the state of the evidence around his recidivist risk if returned to the community, I am necessarily led to a finding that his offending has been so serious that any risk of its recurrence is indeed unacceptable.
My analysis of the material before me leads me to a finding that this Applicant represents an unacceptable recidivist risk and that Primary Consideration 1 thereby carries a very heavy level of weight against revocation of the mandatory cancellation of his visa.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(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:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As best as I understood the material, there is nothing before me suggestive of either (1) the Applicant’s commission of conduct amounting to family violence resulting in a conviction for such an offence; or (2) information or evidence from independent and authoritative sources pointing to the Applicant’s involvement in the perpetration of family violence. This Primary Consideration is not propounded by the Respondent. It must be put to one side and rendered irrelevant for the purposes of the instant determination.
Primary Consideration 3: The Best Interests of Minor Children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
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.
Identification of the relevant minor child/children
In his PCF the Applicant was asked to list any minor children (including biological children, adopted children and step-children) that may be relevant for determining whether his visa status to remain in Australia should be restored to him. He responded with ‘N/A’ which I take to mean ‘not applicable’.[32] In the course of providing oral evidence to the Tribunal, the Applicant did not depart from this position – specifically in relation to any biological children and adopted children. I am satisfied that there are no biological and adopted children of the Applicant relevant to this matter.
[32] G10, p 78.
His PCF is dated 13 May 2022.[33] This date is (to an extent) important because it predates the commencement of the Applicant’s involvement with the person whom he now claims to have a relationship, namely, Ms Alice Connors. I will refer to this relationship later in these reasons but, for present purposes, it suffices to say in her oral evidence before the Tribunal, Ms Connors confirmed their relationship did not commence until July of this year, which, of course post-dates the Applicant’s PCF. The importance of this is to be found in the fact that Ms Connors has a total of six biological children of her own. Two of those children are over the age of 18 and reside independently. The remaining four children reside with Ms Connors. She told the Hearing that they are all her biological children and that they all carry her surname. Those four children comprise the following:
·Adult-child Ti (female) aged 21 years;
·Adult-child Ty (male) aged 19 years;
·Minor-child Te (female) aged 17 years turning 18 in 2023; and
·Minor-child M (male ) aged 17 years turning 18 in 2023.
[33] Ibid, p 75.
Of the four abovementioned children, only child Te and child M are relevant for the purposes of this Primary Consideration 3. I will consider the interests of the other two adult children who reside with Ms Connors, as well as the two who do not, elsewhere in these reasons. I am therefore satisfied that the two relevant children for the purposes of ascertaining allocable (if any) weight to this Primary Consideration 3 comprise child Te and child M.
The parties’ respective contentions
Ms Connors has provided two written statements to this Hearing. In her first statement,[34] she speaks of her relationship with the Applicant, but has nothing to say about any involvement between him and any of her children. In her second statement,[35] she again talks about her relationship with the Applicant and in relation to any reference of the Applicant’s involvement with her children is limited to this
‘[the Applicant] will be living in my home with myself and my 4 children who are supportive of our relationship and him residing with us as they have been able to also build a relationship with him over daily face times.’[36]
[34] A1.
[35] A2.
[36] Ibid.
In her oral evidence, she confirmed:[37]
·she has primary parental responsibility for all of her children;
·none of her children have ever met the Applicant in person;
·whichever of her children have ever communicated with the Applicant have only done so by way of FaceTime;
·whichever of her children have met the Applicant only did so in ‘July or October’ of this year;
·whichever of her children have met the Applicant have spoken to him ‘many times’;
·that if the Applicant is removed to Samoa, whichever of her children communicate with the Applicant will be able to do so via the same social media and telephonic platforms they have utilized for that purpose in Australia.
[37] See Transcript generally, pages 20-22.
The position was largely similar in the oral evidence given by the Applicant.[38] In his oral evidence, the Applicant:
[38] Ibid.
·said he was aware that Ms Connors had children;
·said that he did not know their names;
·thought she had two children but that he has never met either those two or any of her other children in person;
·said that he speaks to the children because Ms Connors puts them on the telephone while he is talking with her from immigration detention;
·when asked how many times he had spoken to the children, he responded with ‘…whenever she rings up…’;
·had little or no convincing response to the suggestion that he could not possibly have a close relationship with any of Ms Connors’ children if he did not know their names or ages;
·said that his relationship with whichever children of Ms Connors he has communicated with is ‘slowly growing’;
·said that if he went back to Samoa he would be able to continue communicating with the children of Ms Connors by the same electronic means as had occurred to date; and
·was unable to recall the first time he spoke to the children of Ms Connors.
There are documents comprising attachments to the Applicant’s abovementioned PCF. In fairness to the Applicant, it should be noted that as the PCF pre-dates the commencement of the claimed relationship with Ms Connors, none of that written material appendaged to the PCF could be reasonably expected to include any reference to the children of Ms Connors.
Post-dating his PCF, the Applicant also provided a further written statement which appears in the material.[39] This particular statement provides detail around the claimed nature and extent of the relationship between him and Ms Connors. It talks about their growing familiarity and of their intention to exchange wedding vows in February 2023. Despite this claimed level of familiarity and marital intent, there is absolutely no reference to Ms Connors’ children and the extent to any, if at all, parental or other relationship the Applicant has had or anticipates having with any of her children.
[39] A1.
There is a further statement from the Applicant, post-dating his PCF, in the material.[40] In this statement the Applicant primarily seeks to explain his conduct and to place the reader at ease about the level of his recidivist risk. He speaks about supporting his family in Samoa and also makes reference to his claimed connection with the children of Ms Connors in Australia. The evidence in the statement goes no higher than this: ‘I had to look after my family [i.e in Samoa] and the new one I hoped to have here in Australia with my partner [presumably Ms Connors].’[41]
[40] A6.
[41] Ibid.
In its SFIC, the Respondent applied the relevant factors at paragraph 8.3(4) of the Direction and concluded that ‘…the Tribunal cannot be reasonably satisfied that this consideration applies and therefore should afford it neutral weight.’[42]
[42] R1, p 6, para [29].
Application of factors in paragraph 8.3(4) of the Direction to the relevant child(ren)
Sub-paragraph (a): the evidence does not approach anything remotely resembling a safe finding that there is a demonstrable nature and level of durability in the relationship between the Applicant and the two relevant children of Ms Connors. The relationship is non-parental, he cannot even recall their names or ages and there has been very limited meaningful contact between him and them. At best, this sub-paragraph only slightly militates in favour of the Applicant’s visa status being restored to him.
Sub-paragraph (b): the two relevant children will be turning 18 during the calendar year of 2023. The Applicant has not played any positive parental role in these children’s past. His capacity to do so in the future is severely restricted because both of them will turn 18 within a matter of months. Any weight allocable to him is to be found in the extent to which he may play such a role during these remaining months until their respective 18^th birthdays. At best, this sub-paragraph only slightly militates in favour of the Applicant’s visa status being restored to him.
Sub-paragraph (c): there is nothing before the Tribunal to suggest or confirm that the Applicant’s past conduct has had, or will have, any negative impact on the two relevant children. While I will develop this following theme further later in these Reasons, it is a matter of concern that Ms Connors confirmed in her oral evidence that she knew nothing of the Applicant’s criminal offending in this country and that she thought he was in immigration detention because his visa had expired.[43] If she knows nothing of the Applicant’s criminal offending, it logically follows the children do not either. This sub-paragraph is not relevant.
[43] See Transcript, pages 23-24.
Sub-paragraph (d): the Applicant and Ms Connors confirmed that the Applicant, if physically removed from Australia, will be able to maintain contact with the relevant children in the same telephonic and/or electronic paradigm which has been utilized to date. He has never personally met these children and cannot even remember the first time he did meet them. At best, this sub-paragraph only slightly militates in favour of the Applicant’s visa status being restored to him.
Sub-paragraph (e): Ms Connors confirmed that she has primary parental responsibility for the two relevant children. The Applicant is in no position to cavil with that evidence. This sub-paragraph does not assist the Applicant.
Sub-paragraph (f): we do not know any views of the two relevant children about their separation from the Applicant. There is nothing in the form of any printed SMS/text messages between them and him nor any reference to a card or letter which could form part of the evidence before the Tribunal. This sub-paragraph does not assist the Applicant.
Sub-paragraph (g): there is no evidence before the Tribunal that any of the two relevant children have been or are at risk or that they are otherwise subject to or at risk of being exposed to any family violence perpetrated by this Applicant or that they have otherwise been abused or neglected by the Applicant in any of the ways stipulated in this sub-paragraph. It is not relevant.
Sub-paragraph (h): there is no evidence before the Tribunal that either of the two relevant children have suffered or experienced any of the referenced trauma as a result of the Applicant’s unlawful conduct in Australia. This sub-paragraph is not relevant.
Findings about the relevant minor children
I have had regard to whatever relevant paragraphs at paragraph 8.3(4) of the Direction may apply to the evidence before me. I find that this Primary Consideration 3 carries only slight and certainly non-determinative weight, in favour of revoking the decision under review.
Primary Consideration 4: Expectations of the Australian Community
The Direction provides that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[44] The Direction further explains:
‘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 [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[45]
[44] Direction 90, para [8.4(3)].
[45] Ibid, para [8.4(4)]. Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.4(1) of the Direction, I understand the architecture of this sub-paragraph thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
·breached the expectation in the immediately preceding sub-paragraph (a); or
·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
I am satisfied this Applicant has breached the Australian community’s expectations by his very serious criminal offending committed in June 2021 which involved a various serious breach of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that this Applicant should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel a non-citizen’s 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.

While the Applicant may not have committed any of the offences stipulated in the immediately preceding categories (a)-(f) (inclusive), I have nevertheless found that his offending committed in June 2021 has been so serious that it invokes the notion of “unacceptable risk” at paragraph 8.1.2(1) of the Direction such that he represents a recidivist risk that the community should not be required to tolerate regardless of other considerations. I am of the view that the extent of the seriousness of this Applicant’s offending is such that the Australian community would expect that he should not be granted a visa to remain here.
The remaining question is whether there are any factors modifying the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary, the relevant principles are these:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[46]
(c) Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[47] and
(d)the nature of a 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 a visa outcome that is not adverse to the non-citizen.[48]
[46]    Direction, paragraph 5.2(4).
[47]    Ibid.
[48]    Direction, paragraph 5.2(5).
First, I refer to sub-paragraph (a) of the immediately preceding paragraph [83]. I note that the term ‘limited stay visa’ is not defined in the Act. There is, however, a classification of visas in the Act into the following categories. Relevantly for present purposes, s 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or, ‘temporary’ visas. The Applicant had a temporary visa and, therefore, it can be found that the Australian community would have a low tolerance of his very serious unlawful conduct in this country.
Second, I refer to sub-paragraph (b) of the abovementioned paragraph [83]. The Applicant arrived in Australia on 25 May 2021. He committed his very serious offence in Australia barely a month after his arrival in June 2021. He has made next to no contribution to the Australian community. He has only participated in this community for ‘only a short period of time’. He has not fathered children in this country and whatever connection he may have with Ms Connors’ children is only in its formative stages and not yet of any significance. He has engaged in remunerative employment in Australia for barely one month. His participation in, and contribution to, to Australian community must be found to be ‘short’. Therefore, the Australian community’s tolerance is lowered by this part of the principles in 5.2(4) of the Direction.
Third, I refer to sub-paragraph (c) of the abovementioned paragraph [83]. I repeat that the Applicant was only in Australia for barely a month before he very seriously offended. Whatever time he has spent here has been overwhelmingly spent in prison or immigration detention. This sub-paragraph (c) can only be applied towards a finding that the Australian community would not afford a higher level of tolerance for this Applicant’s very serious criminal conduct because he has not resided in the Australian community for most of his life. I am of the view that this Applicant’s unlawful conduct in Australia and the resulting harm from that conduct (thus far) has been of such a magnitude such as to dispel any applicable countervailing considerations.
Fourth, I refer to sub-paragraph (d) of the abovementioned paragraph [83]. I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-offending and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s conduct and the resulting harm from that conduct (thus far) has been of such a magnitude such as to dispel any applicable countervailing considerations.
I therefore conclude that the Australian community’s expectations are not modified such that the community has a higher than usual tolerance of the criminal conduct committed by the Applicant. Because of his very serious breach of the community’s expectations as a result of his very serious breach of Australian law, I am of the view that the community expects the government can and should cancel his visa.[49] I so find.
[49] Direction, paragraph 5.2(3).
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a very heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
Other Considerations
Other Consideration (a): International non-refoulement obligations
There is no contention from the Applicant to the effect that a removal to Samoa will result in a breach of Australia’s non-refoulement obligations. Out of an abundance of caution, I refer to a couple of lines appearing in the Applicant’s PCF to this effect: ‘if I was deported back to Samoa, that would leave a black mark on my name internationally and would confine me to Samoa with no future for any prospects.’[50]
[50] G10, p 84.
Given the absence of any contention about non-refoulement obligations by the Applicant arising from the word ‘internationally’, I will instead construe this language as being more appropriately relevant to any discussion about impediments that may confront him upon a return to Samoa. I am therefore satisfied that this Other Consideration (a) is not relevant.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant’s written material and oral evidence
When the Applicant was apprehended by the police following his very serious offending conduct in June 2021, the police conducted an intake interview with him. The transcription of that interview appears in the material.[51] In that document the police recorded that in respect of the Applicant there was ‘No history or current Mental Health issues…No referral needed DOA Nurse. He has no current fears for his safety has no current thoughts of self-harm or harm to others.’[52]
[51] G9, p 53.
[52] Ibid.
In his PCF Applicant was not asked: ‘Do you have any diagnosed medical or psychological conditions?’[emphasis in original] He responded with ‘No’.[53] He was also asked about whether he was taking any medication and both columns under the respective headings of ‘name of medication’ and ‘condition(s) prescribed for’ were answered in blank. Further, he was asked:
‘If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.
[He responded thus]
No’[54]
[Underlining and emphasis in original]
[53] G10, p 83.
[54] Ibid.
I have again reviewed his two statements before the Tribunal (that is, in addition to what appears in his PCF). In the first[55] there is no reference to any mental or physical malady confronting him. In the second there is reference to the abovementioned anger management and drug and alcohol courses he has done, but this is in the context of his difficulties with alcohol referrable to the very serious offence he committed. Otherwise, there is no reference to any mental or physical malady confronting him in this second statement.
[55] A1.
With further reference to his PCF the Applicant was asked the following things about a return to Samoa and he responded thus:
‘Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship? Yes
If yes, describe your concerns and what you think will happen to you if you return.
My fear and concerns in returning back to Samoa, is that I would not be able to provide financially for my family, with the life and support, I had set out to do when I came to Australia. Not only the financial burdens and the everyday costs of living would be very difficult in Samoa, but the emotional and physical trauma I would be suffering upon return, as I know I had let my family dow which would be deemed as a disgrace in the eyes of other villagers. The psychological impact it would have on me would be unbearable which I know would lead to a very negative outcome in my future. With no real future for prospect and sustainability in my village, the only outcome for myself, and a reality for others who have been deported back to Samoa, would be begging in the streets.
…
Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these.
The main problem I would face in Samoa is finding suitable work to provide for my family. As most Samoan families back in Samoa are helped with families living abroad who send financial assistance back to help them in their everyday lives. As explained above I would become an outcast which inevitably would lead me to a life of begging on the streets.’[56]
[Emphasis in original, underlining from original omitted]
[56] G10, pp 83-84.
Sub-paragraph 9.2(1)(a): the Applicant is a young man currently aged 27. I am satisfied that the Applicant is in good and normal physical and mental health and that there is nothing in the material to indicate that either his age or state of mental or physical health will act as impediments to his removal from Australia and resettlement in Samoa.
Sub-paragraph 9.2(1)(b): the Applicant lived the first 26-27 years of his life in Samoa until his arrival in Australia in May 2021. He was in the Australian community for barely a month at which time he committed his very serious offence. It would be extraordinary to suggest he will face any substantial language or cultural barriers upon a return to Samoa. He clearly will not do so.
Sub-paragraph 9.2(1)(c): I refer to the above-quoted portions from the Applicant’s PCF [see paragraph [96] of these reasons]. As best as I understood that narrative, the Applicant’s claimed social, medical and/or economic support-type impediments are stated thus:
·he ‘…would not be able to provide financially for my family, with the life and support, I had set out to do when I came to Australia.’ It is difficult to conceive of how not being able to derive income in Australia to repatriate to his family in Samoa now somehow represents an impediment if removed to that country. The Applicant intended to come to Australia to earn an income to support his family in Samoa. He can do the same thing in Samoa trying to assist his family by earning what he can in Samoa. The difference between what he could earn in Australia compared to what he can earn in Samoa cannot be safely found to be an impediment;
·he is concerned about ‘…the everyday costs of living would be very difficulty in Samoa…’. The cost of living is not low or cheap in Australia. I daresay the cost of living in Samoa is cheaper than in Australia. In relative terms and without more precise evidence, it would be unsafe to elevate any difference in the cost of living between Australia and Samoa as an impediment to this Applicant’s return to Samoa. He will be required to meet the cost of living in Samoa just as other citizens of Samoa do every day;
·he is concerned about ‘…the emotional and physical trauma I would be suffering from upon return…’. This cannot be safely found to be an impediment. There is no evidence that he is experiencing any such trauma now given the pending threat of his removal that has loomed over him for the best part of a year. Were he to experience such trauma he would be able to avail himself of the same level of medical support as would be available to other citizens of that country;
·he is concerned about his very serious unlawful conduct in Australia would come to the knowledge of other Samoans ‘…which would be deemed as a disgrace in the eyes of other villagers…’. Embarrassment or disgrace consequent upon the Applicant’s very serious offending in Australia cannot be safely found to be an impediment to his return to Samoa. This is a subjective matter that is not corroborated in any of the material. None of this embarrassment or disgrace ‘in the eyes of other villagers’ is said to manifest into a threat of physical harm against the Applicant. To repeat it is a subjective matter for the Applicant and not something that can be objectively defined as an impediment for the purposes of the Direction;
·he is concerned about ‘The psychological impact it would have on me would be unbearable…’. There is absolutely no evidence of the Applicant experiencing any psychological impact as a result of this proceeding which has involved a pending threat of his removal for the best part of a year. There is no evidence that he would suffer any such impact upon a return – save and except for the Applicant’s own evidence to that effect. Were he to experience such symptoms, he would have available to him the same level of medical and economic support as is generally available to other citizens of Samoa;
·he is concerned that based upon ‘…a reality for others who have been deported back to Samoa…’ he would be reduced to ‘…begging in the streets.’ There is no evidence of returnees being reduced to ‘begging in the streets’ in Samoa. The Applicant is a young and able-bodied man who appears willing to work. He found remunerative employment in Australia and there is little or nothing to challenge the proposition that he would not be able to do likewise in Samoa. I am not satisfied that whatever relative difference there may be between his earning power in Australia versus Samoa is an impediment. In any event, the only safe way to reach such an analysis is to compare the spending power of an income in Australia relative to its cost of living against his potential earnings in Samoa and the capacity of those earnings to meet the cost of living in Samoa. That analysis is not before the Tribunal;
·he says the main problem he ‘…would face in Samoa is finding suitable work to provide for my family.’ The unemployment rate in Australia is 3.5-4%. The unemployment rate in Samoa is 9.84%. Obviously, the unemployment rate is higher in Samoa. That said, the Applicant is of an age and disposition that would qualify him for a range of manual-labour jobs of the type he did in Australia for the month he worked here. It can be accepted that the difference in the rate of unemployment between Australia and Samoa may present an impediment upon his return;
·he is concerned that ‘…I would become an outcast which inevitably would lead me to a life of begging on the streets.’ I have earlier provided my findings about the extent of any impedimentary potential of the Applicant’s claim of being reduced to ‘a life of begging on the streets’ if removed to Samoa. That claim goes nowhere. That said, to the extent that the Applicant may become ‘an outcast’ upon a return to Samoa (assuming anybody ever learns of or is bothered to learn of his very serious offending here) he does have very strong social support in that country. There is a plethora of family members that reside in Samoa that could offer him social support in the event of him becoming an ‘outcast’. His father, mother, three brothers and one sister all reside in Samoa. He has five uncles, two aunts, six cousins, three nieces and one nephew residing in Samoa.[57]
[57] See G10, pp 79-80.
While the Applicant may face an impediment in terms of finding remunerative employment in Samoa, I do not consider that impediment to be insurmountable and he will have available to him the same job opportunities as are available to other citizens of Samoa. He will not face any impediments in relation to his age and state of mental and physical health – at least in the short to medium term upon his return to Samoa, nor will he face any substantial language or cultural barriers if returned.
Having regard to my respective findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it confers only a moderate, and certainly not determinative, level of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) requires me to consider the impact of a s 501 or 501CA decision on members of the Australian community. This includes 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.
As best as I understood the material, there is no evidence before me regarding any impact the Applicant’s continued presence in Australia would have on his victim. This hearing does not have before it any specific evidence from that victim describing any adverse impact upon him as a result of the Applicant’s continued presence in Australia. Without such evidence, it would not be safe to enter the realm of conjecture and speculate about the extent to which the Applicant’s offending has had, or would have, on of his victim.
I am mindful of the authority of PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs,[58] which allows a decision maker to have regard to a statement from a victim speaking favourably about the Applicant remaining in Australia. However, in the absence of such a statement in the material before me, no such discussion is warranted.
[58] [2021] FCA 1235.
As best as I understood the respective positions of the parties, this Other Consideration (c) is of no relevance to the instant determination. I agree with the parties and I allocate no weight to it.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of the Applicant’s ties to Australia; and (2) the impact on Australian business interests if the Applicant cannot remain here. I will consider each in turn.
(1) Strength, nature, and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, I will assess the impact of a refusal to revoke decision on the Applicant’s, ‘immediate family members in Australia’ where those people have a right to remain in Australia indefinitely. Second, I will assess the impact of a refusal decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, I will assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family

In his PCF the Applicant does not record having any immediate family member in Australia. His PCF records the following immediate family members residing in Samoa: a sister, three brothers, his mother and father. Also in his PCF he responds with ‘N/A’ (presumably meaning ‘Not Applicable’) in relation to him having any spouse or partner in Australia. As mentioned earlier, this PCF dates from May 2022. As was demonstrated in the oral evidence, whatever relationship he now propounds to have with Ms Connors did not commence until June/July 2022. I will, however, take Ms Connors into account elsewhere in the discussion around Other Consideration (d). I will do likewise with regard to Ms Connors’ four adult children.
This component of Other Consideration (d) is of neutral weight for the purposes of the instant determination.
2. Strength, nature and duration of “other ties” – length of residence
There are two necessary enquires behind any assessment of the Applicant’s, ‘other ties’ to Australia. First, it is necessary to ascertain how long he has resided in Australia, including whether he came here as a young child. As I mentioned earlier, the Applicant arrived in this country in May 2021 as a 26 year-old. He very seriously offended barely a month after being here. He has spent a negligible amount of time in Australia. I find that pursuant to paragraph 9.4.1(2)(a)(i), the Applicant began offending soon after arriving in Australia. I find that pursuant to 9.4.1(2)(a)(ii) it is not possible to give any ‘more weight’ to the Applicant because whatever positive contribution he would have made to the community lasted for barely a month after his initial arrival.
This component of Other Consideration (d) is of neutral weight for the purposes of the instant determination.
3. Strength, nature and duration of “other ties” – family and other social links
In his PCF the Applicant records no extended family member of his residing in Australia. Instead, he refers to five uncles, two aunts, six cousins, three nieces and one nephew, all of whom reside in Samoa.[59] He does not have any extended family member residing in Australia. The next question is the extent to which the Applicant claims to have a relationship with Ms Connors. In a written statement before the Tribunal he refers to her as ‘…my soon to be wife…’ and that ‘…we have been together since 13-05-22 and are looking to get married 23-02-23’.[60] In this written statement he also says ‘…all we want my partner Alice [Connors] living in capital of Australia canberra [sic] act [sic] and this is where I plan to reside once we are married on 23/02/23’.[61] In this statement he adds that ‘…if I was to be deported it would only delay our home life and relationship as we plan to get married and live together asap.’[62]
[59] G10, p 80.
[60] A1, p 1.
[61] Ibid, p2.
[62] Ibid.
At the Hearing, the applicant was cross-examined about the nature and extent of his relationship with Ms Connors, he was asked about when the relationship actually commenced because in his written statement it commenced on 13 May 2022. He conceded in Cross-examination that this date conflicted with what Ms Connors said in her statement. In her statement, she said they met in June and started a relationship in July 2022. The Applicant agreed that they met in June and that she came to visit him in either prison or immigration detention in July. The Applicant thought they commenced their relationship in June 2022.[63] She subsequently changed that to July 2022.[64]
[63] Transcript, p 14, lines 9-16.
[64] Ibid, p 12, lines 45-46.
The Applicant told the Hearing that he and Ms Connors were still in a relationship and that they initially met over social media while he was in immigration detention. He further confirmed that on 13 August 2022 Ms Connors visited him in immigration detention. He agreed that most of his communications with Ms Connors have occurred online and that in the event of his removal to Samoa he would be able to continue that mode of communication with her. The Applicant said nothing about the extent of any relationship he has, or may be developing, with the four adult children of Ms Connors.
Ms Connors has provided two written statements. In the first of those she says that she and the Applicant met on 13 June 2022. She adds that:
‘…our relationship blossomed through the limited visits we have had and our consist [sic] communicate we have had daily through FB messages and face time many time a day [sic]. we very quickly fell inlove which resulted in my self visiting him and meeting each others loved ones to where we are now getting married and will be apart [sic] of my home and family officially as he already is. I am asking for him not to be deported due to our relationship which is soon to be a marriage and that we are both willing to answer any questions necessary and give what evidence is needed so that myself and my soon to be husband can continue on living our life together…I am asking that while we plan our wedding hopefully with no rush so we can enjoy our big day that he being moved back to Sydney where I am able to see my partner…’[65]
[65] A1, pp 3-4.
Ms Connors gave oral evidence at the Hearing and was cross-examined. She agreed that she has only visited the Applicant and been with him on a one-on-one basis on just the one occasion. She agreed that almost the entirety of their relationship had occurred on social media. She said nothing about any negative impact on her adult children were the Applicant to be removed to Samoa. She was specifically asked whether she knew the reason for the Applicant’s current placement in immigration detention. She knew nothing of the Applicant’s criminal offending and that his visa had been cancelled because of that very serious offending. She thought the Applicant was in Australia ‘…looking for work…and his visa had run out’.[66]
[66] Transcript, p 11, line 43.
Importantly, the following exchange occurred between her and the Respondent’s representative at the Hearing:
‘Mr McLaurin: So you aren't aware that Mr Afegogo's visa was cancelled due to crimes that he committed?
Ms Connors: Say that again, darl?
Mr McLaurin: Are you aware that Mr Afegogo's visa was cancelled due to crimes that he committed?
Ms Connors: (indistinct) What do you mean by crimes?
Mr McLaurin: So you're not aware of any crime that Mr Afegogo has committed? Is that correct?
Ms Connors: Not that I know of, no.’[67]
[67] Ibid, p 12, lines 3-10.
Ms Connors was also asked whether she would relocate to Samoa to reside with the Applicant in the event of his removal from Australia:
‘Mr McLaurin: Okay. Madam Interpreter. And would it be possible for you to visit Mr Afegogo in Samoa if he was to return there?
Ms Connors: It would be – it would be hard but.
Mr McLaurin: You can just say it would be a challenge?
Ms Connors: Yes. It would be hard for me to leave Australia.’[68]
[68] Transcript, p 13, lines 38-43.
One must have significant misgivings about the Applicant’s propounded relationship with Ms Connors. On a cynical view, it appears more as a ruse as a means of improving his chances in the instant application. Putting cynicism to one side, my misgivings about the relationship arise from (1) the relatively short time span of the claimed relationship thus far; (2) the fact that each of them came up with different start dates for the relationship; (3) he cannot even recall how many children she has nor even what their names are; and (4) an apparent mutual desire to marry in circumstances where they are yet to live together, have only met once on a face-to-face basis and have conducted their relationship almost exclusively on social media.
Be all of that as it may I will find that the Applicant has a slight family or social link with Ms Connors in Australia. The resulting finding is that she would be adversely impacted by the Applicant’s removal to Samoa, although such a finding can be tempered by her evidence that she would be able to maintain contact with him via electronic means. This finding is made on the basis that Ms Connors is a lady of Aboriginal descent and as such is a person who has a right to remain in Australia indefinitely. For completeness, I note ( and find) there is next to nothing in the written or oral evidence about Ms Connors’ adult children being impacted by his removal.
The material contains a statement from an Anglican priest, the Reverend Katrina Holgate.[69] Reverend Holgate has, for some seven years, attended the Yongah Hill Immigration Detention Centre to provide pastoral care and a Holy Communion Service to those who wish to attend. The Reverend says the Applicant has been attending Anglican services while at Yongah Hill. She says the Applicant ‘…always presents as an honest and consistent person. He is stable and calm and has a quite good command of English.’[70] The Reverend’s statement does not mention anything about her or parishioners being adversely affected as a result of the Applicant’s removal.
[69] A3.
[70] Ibid.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australia community
I will initially refer to the first part of this Other Consideration being the strength, nature and duration of his ties to Australia. I am of the view, after having analysed the three abovementioned elements, that only the evidence in and around the claimed relationship with Ms Connors assists the Applicant. Taken at its highest, I find that the Applicant’s claimed relationship with her points to the allocation of a moderate, but not determinative, level of weight in his favour. The second part of this other consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s link to the Australian community (i.e Ms Connors) carries a moderate, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: is not relevant;
(b)extent of impediments if removed: carries a moderate, but not determinative, level of weight in favour of revocation;
(c)impact on victims: is not relevant; and
(d)links to the Australian community: carries a moderate, but not determinative, level of weight in favour of revocation.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs very heavily against revocation;
·Primary Consideration 2: is not relevant;
·Primary Consideration 3: carries a slight, but not determinative, weight in favour of revocation;
·Primary Consideration 4: weighs very heavily against revocation;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the respective very weights I have allocated to each of Primary Considerations 1 and 4 convincingly and determinatively outweigh the respective weights I have allocated to Primary Consideration 3 and Other Considerations (b) and (d);
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore does not favour revocation of the delegate’s decision made on 29 September 2022 which refused to revoke the mandatory cancellation of the Applicant’s visa.
Consequently, I find that there is not ‘another reason’ why the Respondent’s decision of 29 September 2022 should be revoked.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 September 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[SGD]............................................
Associate
Dated: 23 December 2022

Date(s) of hearing: 19 December 2022

Applicant: Self-represented

Advocate for the Respondent: Mr Harry McLaurin (Associate)

Solicitors for the Respondent: Minter Ellison
Annexure A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents

(G1-G17, paged 1-122)

R

Various

4 Nov 2022

G2

Supplementary G-Documents

(S1-S13, paged 1-112)

R

Various

5 Dec 2022

G3

Further Supplementary G-Documents

(FS1-FS3, paged 1-18)

R

Various

15 Dec 2022

R1

Respondent’s Statement of Facts, Issues and Contentions

(Paged 1-9)

R

5 Dec 2022

5 Dec 2022

A1

Applicant’s Statements

(Two hand written statements)

A

-

25 Oct 2022

A2

Support Letter of Alice Connors

A

15 Nov 2022

18 Nov 2022

A3

Support Letter of Katrina Holgate

A

16 Nov 2022

18 Nov 2022

A4

Certificate of Course Completion

A

23 Apr 2022

7 Dec 2022

A5

Certificate of Course Completion

A

23 Apr 2022

7 Dec 2022

A6

Letter from Applicant

A

-

7 Dec 2022

A7

Course Information (Lesson 1)

A

8 Dec 2022

13 Dec 2022

A8

Course Information (Lesson 2)

A

9 Dec 2022

13 Dec 2022

A9

Course Information (Lesson 3)

A

12 Dec 2022

13 Dec 2022

A10

Course Information (Lesson 4)

A

12 Dec 2022

13 Dec 2022

[2022] AATA 4448

23 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	19 December 2022
Applicant:	Self-represented
Advocate for the Respondent:	Mr Harry McLaurin (Associate)
Solicitors for the Respondent:	Minter Ellison

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G17, paged 1-122)	R	Various	4 Nov 2022
G2	Supplementary G-Documents (S1-S13, paged 1-112)	R	Various	5 Dec 2022
G3	Further Supplementary G-Documents (FS1-FS3, paged 1-18)	R	Various	15 Dec 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-9)	R	5 Dec 2022	5 Dec 2022
A1	Applicant’s Statements (Two hand written statements)	A	-	25 Oct 2022
A2	Support Letter of Alice Connors	A	15 Nov 2022	18 Nov 2022
A3	Support Letter of Katrina Holgate	A	16 Nov 2022	18 Nov 2022
A4	Certificate of Course Completion	A	23 Apr 2022	7 Dec 2022
A5	Certificate of Course Completion	A	23 Apr 2022	7 Dec 2022
A6	Letter from Applicant	A	-	7 Dec 2022
A7	Course Information (Lesson 1)	A	8 Dec 2022	13 Dec 2022
A8	Course Information (Lesson 2)	A	9 Dec 2022	13 Dec 2022
A9	Course Information (Lesson 3)	A	12 Dec 2022	13 Dec 2022
A10	Course Information (Lesson 4)	A	12 Dec 2022	13 Dec 2022