Ah-San and Minister for Immigration and Multicultural Affairs (Migration)
[2024] AATA 3389
•20 September 2024
Ah-San and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3389 (20 September 2024)
Division:GENERAL DIVISION
File Number: 2023/8729
Re:Shane Ah-San
APPLICANT
AndMinister for Immigration and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of Decision: 20 September 2024
Date of Reasons: 25 September 2024
Place:Brisbane
On 20 September 2024, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal set aside the decision made by the Respondent's delegate dated 14 November 2023 and instead revoked the cancellation of the Applicant’s visa.
…..............[SGD]...................
Senior Member R BellamyCATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a a Class TY Subclass 444 Special Category (Temporary) 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. 110 – very serious offending – strong evidence of rehabilitation – strong ties to the community – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
25 September 2024
The Applicant is a 35-year-old citizen of New Zealand whose Class TY Subclass 444 Special Category (Temporary) visa (“visa”) was cancelled due to his criminal offending. He asked a delegate of the Minister (“the Respondent”) to revoke the cancellation, and that request was denied. He then asked the Tribunal to review that decision and, instead, revoke the cancellation.
The Ministerial Direction that applies to this decision provides that a non-citizen who engages in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.[1] The Applicant’s offending, which includes drug trafficking and the supply of firearms, is so serious that he should expect to forfeit the privilege of staying in Australia. However, the Direction also mandates that certain other factors be taken into account as far as they are relevant. In this case, there are other relevant factors that, taken together, justify the revocation of the cancellation of the Applicant’s visa, despite his serious offending. This decision was finely balanced and was influenced by my acceptance that, since the Applicant’s most recent offence, he has genuinely reformed, and he now poses a very low risk of harm to the Australian community.
[1] Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”), paragraph 5.2(3).
The four witnesses called by the Applicant were particularly helpful to his case, especially as his own evidence was problematic in parts. The Applicant’s wife, his counsellor, a long-term friend, and a mentor from his local church impressed me as honest witnesses who gave authentic evidence and balanced, considered opinions. I was therefore able to rely on their evidence in my assessment of the Applicant’s character and the extent to which he has addressed the factors that contributed to his offending, along with the significant positive role he plays in his family, extended family and local community.
LEGAL FRAMEWORK
The cancellation of the Applicant’s visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In December 2022, the Applicant was sentenced to imprisonment for seven years. In March 2023, while he was serving that sentence, a delegate of the Minister (“the Respondent”) cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence.
A mandatory visa cancellation can be revoked under s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 14 November 2023, the Respondent decided not to revoke the cancellation. That decision was reviewable by the Tribunal pursuant to s 500(1)(ba) of the Act. A differently constituted Tribunal reviewed the decision, affirming it. However, the Federal Court found jurisdictional error in the Tribunal’s decision, and the matter was remitted for a fresh review.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[2]
[2] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 5 and 6 September 2024. The Applicant gave evidence in person, as did his wife. His counsellor, Mr Manny Iakopo, his friend, Pastor Roger Afele, and Mr Sam Luteru from his local church gave evidence via video link. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
I had initially intended to issue my decision accompanied by written reasons. However, events transpired that made it desirable to issue the decision before the written reasons were finalised.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
·The safety of the Australian Community is the highest priority of the Australian Government.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
The matters that influence my decision are determined by the Direction. Paragraph 6 of the Direction provides 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.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1)the protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests
Paragraph 7(2) of the Direction provides that Primary Consideration 1 (protection of the Australian community) is generally to be given greater weight than other primary considerations, and that otherwise, primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
It was conceded by the Respondent, and I accept, that the Applicant has never committed any act of family violence, so Primary Consideration 2 does not apply.[3] It was conceded by the Applicant, and I accept, that Other Considerations (a) and (c) do not apply.[4]
[3] Exhibit R1, page 12, paragraph 45.
[4] Transcript, page 85, lines 31 to 44. Exhibit A1, page 35, paragraph 124.
BACKGROUND
The Applicant was born in June 1989 in New Zealand. In September 2001, at the age of 12, he moved with his family to Australia. His father had been a harsh, physical disciplinarian. He did not accompany the family to Australia although he came here for a brief period in an unsuccessful effort to save the marriage.
The Applicant got into trouble at school and was suspended on several occasions for fighting. However, he completed Year 12 in 2006. At the age of 14 or 15, he started smoking tobacco and drinking alcohol socially. He was introduced to cannabis at the age of 17 years through friends in high school. He used it in social settings “to fit in” for approximately one to two years.
In early 2007, when the Applicant was 17 years old, he met Ms Telesi. She had an 11-month-old daughter whose father was not in her life. The Applicant and Ms Telesi commenced a relationship, and they raised her daughter together, who has recently turned 18.
The Applicant’s first transgression occurred later that year when he rode a bicycle without a helmet. There were many more traffic infringements after that, mostly arising from him driving as though he had an open license when he only had a learner’s permit. He was caught on four occasions between November 2007 and April 2008. He described that behaviour as “I was just on my learners permit and I was just driving around… Just being silly”.[5]
[5] Transcript, page 27, lines 29 to 35
In May 2008, the Applicant was involved in violent robbery in company and wilful damage. The victim was a man who had recently lost his accommodation and was sleeping in the driver’s seat of his car in a rest area along the highway. In the early morning, the Applicant and three of his friends went out with the intention to rob people. In the hearing, the Applicant said he did not know of an intention to rob people,[6] however his previous evidence about that has been inconsistent and he was convicted on the basis that he did know, so I am satisfied that he knew.
[6] Transcript, page 24, lines 4 to 31.
The Applicant was driving the car. He pulled up beside the victim’s car. A co-offender opened the victim’s driver’s side and punched his head around ten times. Another offender entered by the passenger side door, punched the victim, and looked through front console and glove compartment. A third approached with a baseball bat. The Applicant kicked the rear of the car causing a large dent in the rear quarter panel. The group then got into their car and left. They had stolen the victim’s car keys, a basketball, Nike sunglasses and an MP3 player. The victim was left with pain and around his jaw and face, and swelling that caused discomfort for approximately a week.
I am satisfied that the Applicant did not attack the victim or steal from him, despite one of his co-offenders later telling the police that he did. However, his actions in driving the group there facilitated those things. In the hearing, he readily accepted that he bore some responsibility because he brought his co-offenders to the place where they attacked the victim.[7]
[7] Transcript, page 34, lines 25 to 24.
The Applicant later presented himself to police, and it appears he was charged and released on bail. On 9 June 2008, he breached a condition of his bail. He committed more traffic infringements on 22 June 2008. In late June and early July 2008, he breached bail three more times, followed by another breach in August 2008. He continued to commit traffic infringements – in October 2008 and April, May and July 2009, again arising from driving on his learner’s permit. In July 2009, when police intercepted him, he admitted that he had been intercepted before for the same offence and he had been issued numerous infringement notices.
On 27 July 2009, the Applicant was sentenced to two years imprisonment for the robbery with violence in company and wilful damage on the basis that he was involved. He was granted immediate court-ordered parole. In the present hearing, he said he recalled the Judge telling him he had to “be responsible or something”, and that he thought he could go to gaol.[8] He later told a psychologist that he did not get in trouble for almost ten years after this because “I promised mum I would not put her through that heartache again.”[9] He told the Tribunal that he got a different set of friends.[10] However, he kept breaking road rules. He committed infringements in October 2009, and in April, August and September 2010. In October 2010, he exceeded the speed limit by at least 20 kmph.
[8] Transcript, page 25 line 35 to page 26 line 17.
[9] Exhibit RB, page 258.
[10] Transcript, page 27, lines 20 to 24.
In December 2010, a daughter, Child A, was born to the Applicant and Ms Telesi.
In September 2011, the Applicant was caught speeding. He still did not have an open license.
Another daughter, Child B, was born in 2012.
The Applicant was caught driving without proper supervision on his learner’s permit in January 2013 and he failed to comply with a defect notice in April 2013. In May 2013, he was caught driving unlicensed. In October 2013 and January 2016, he was caught speeding by more than 30 kmph, and in March 2016 he was caught speeding by more than 20 kmph, still while he did not have an open license. He also committed some lower range speeding offences between 2013 and 2016.
Around 2013 or 2014, the Applicant was introduced to crystal methamphetamine through friends after he had to give up his employment due to ongoing pain in his ankle. He found it made him feel “chilled and relaxed”, however over the next few years his use escalated to the extent that he was “always high”.[11]
[11] Exhibit RB, page 257.
On 20 August 2016, the Applicant flew back to Australia from a visit to New Zealand. On his Incoming Passenger Card, he was asked “Do you have any criminal convictions?” and he ticked the box that said “No”, which was obviously incorrect.
In October 2016, he was caught riding an unregistered (and therefore uninsured) motorcycle with the wrong plates, and driving on his learner’s permit without a person with an open license with him. He gave a false name to the police.
In May 2017, the Applicant’s son, Child C, was born. He continued to drive over the speed limit while on his learner’s permit, and he committed some other traffic infringements, with his last recorded infringement being in October 2018.
The Applicant continued to have difficulty earning a living. He was only able to get work doing manual labour, but sometimes he was unable to work due to his ankle condition. He was not entitled to social security payments and Ms Telesi was not working, which led them to struggle financially. He was also using crystal methamphetamine, on which he became dependant. His use escalated to the point where he was using it daily or multiple times per day. He concealed his drug use from his wife.
In June 2018, the police commenced an operation to target the distribution of dangerous drugs and firearms throughout Logan and the greater Brisbane area. The Applicant and his brother, Shamish, were two of the primary targets of the operation. Another brother, Shalom, became a secondary target. The police used controlled activities and operations, surveillance, search warrants and telephone interceptions in this operation.
According to the Crown’s Statement of Facts, which was accepted by the court (except for one matter that I will address later), between September 2018 and July 2019, the Applicant supplied methamphetamine and firearms to two undercover operatives, referred to by the police as “Law Enforcement Participants” (“LEPs”). He was ultimately convicted of several offences and sentenced in the Supreme Court.
The Applicant was often unable to obtain drugs (or weapons) at short notice. When negotiating with the LEPs about drug prices, the Applicant had to contact the supplier to ascertain prices. The Applicant told the LEPs that he had trusted persons to test the product before offering it for sale. He had at least three suppliers, he and referred to his preferred supplier as “Mr Hong Kong”.
When holding drugs, the Applicant and his brothers did not keep the drugs at their own homes. Rather, they stored them elsewhere, and they had concealed compartments fitted into their vehicles to hide the drugs. There were eight drug purchases involving a total amount of 10.5 ounces for a total cost of $45,400. The Applicant also negotiated the supply of a kilogram of methamphetamine for $120,000 but he was ultimately unable to supply that amount.
The Applicant and his brothers used encrypting messaging services, such as Wickr, to communicate with each other and with LEPs. They paid $2,500 for a six-monthly subscription for the service and encouraged the LEPs to do the same.
The Applicant also supplied eight firearms and one home-made silencer at the request of the LEPs. This was done in five transactions for a total amount of $53,700. He was occasionally assisted by his brothers. The firearms included a shortened single barrel break action shotgun, a shortened semi-automatic centre-fire rifle, a bolt action repeating rim fire rifle and a bolt action repeating centre-fire rifle. Two of the firearms, being shotguns, belonged to the Applicant before he sold them. Arrangements were made to supply another gun for $8,500, but that did not eventuate. In the hearing, the Applicant said he got the firearms through the people he was taking drugs with, and readily conceded that they were all unregistered. He agreed with the suggestion that his drug taking made him think in a way that he did not normally think, although he also agreed that he knew it was dangerous to supply firearms to people.[12]
[12] Transcript, page 30, lines 1 to 39.
The investigation came to an end when, on 20 September 2019, police executed a number of search warrants. During the search of the Applicant’s home, they located $3,000 in cash and a brass pipe. He was asked to provide the passcode for mobile phones that were found, but he refused. He declined to participate in a formal interview. Shamish participated in an interview and denied everything, and Shalom declined to be formally interviewed. However, they all ended up pleading guilty to various offences. The learned sentencing Judge accepted that the Applicant’s motivation for offending was financial reward and the expectation of profit, although he did not make much profit on the drug deals.
I digress to note that, on 1 June 2019, the Applicant hung his torso out of a bus window. When the police spoke with him, he refused to state his name and he became argumentative. As a result, he was charged for obstructing a police officer and contravening direction or requirement, and he was convicted and fined for those offences on 26 June 2019.
On 25 August 2019, when returning from a short overseas trip, he again ticked that he did not have any criminal convictions on his Incoming Passenger Card.
In the first hearing, the Applicant described himself as being a bit selfish during his relationship with Ms Telesi in 2017 and 2018, wanting to “hang out with the boys. Just hanging out with the wrong crowd”. By the time he was arrested 2019, Ms Telesi “was leaving”, “done”, “going to file for a divorce”.[13]
[13] Exhibit R2, pages 9 and 21.
After his arrest for the drugs and weapons offences, the Applicant was remanded in custody for nearly two years. He was very apologetic to Ms Telesi, and she did not file for divorce. There is no evidence of any drug use or poor custodial behaviour while the Applicant was on remand. Further, during this time, he completed a short substance intervention program. He also learned to cut hair.
On 28 September 2021, the Applicant was released on bail. His bail conditions required him to report daily to a police station and to observe a curfew that required him to be home between 7pm and 5am. He did not use drugs or re-offend, and he complied with his bail conditions.
Two days after his release on bail, he commenced a 12-week treatment and intervention program, run by Drug ARM and the Community and Family Support Service (“CAFSS”). The program was aimed at increasing self-esteem, relapse prevention skills, support and advocacy. He attended the ten scheduled sessions. A letter from Drug ARM stated that he “always arrives on time and engages positively throughout each counselling session”.[14] He was drug tested on 26 October 2021 and 11 November 2021, and he passed. He also tried to connect with a men’s group, but was unable to attend most meetings due to his curfew.
[14] Exhibit RB, page 243.
The Applicant’s family is Seventh-day Adventist. He drifted away from the church as a teenager, but in early 2022, he approached the Adventist Development and Relief Agency (“ADRA”), which is the official humanitarian agency of the Seventh-day Adventist Church, wanting to do some voluntary work.[15] He wanted to give back to the community and make amends for his offending. Initially, he was tasked with things like moving furniture and taking fridges and the like to people in need. The man in charge of the ADRA Logan Community Centre, Mr Luteru, asked the Applicant to join in the Local Drug Action Team which delivered a “Busy Hands, Hearts and Minds” program for the local community between February and July 2022. It met weekly and aimed to engage people in activities to minimise and prevent the use of alcohol and other drugs. People, mostly men, gathered and did creative things like woodwork, arts and crafts, had coffee, and engaged in conversation. The Applicant took a leading role providing food and refreshments, and he became one of two mentors in the program.
[15] Exhibit R2, page 4.
The Applicant also became involved in “Street Church”, which is an outreach program that provides food to the homeless. This entailed having breakfast together, sitting at tables, and engaging with people who were homeless or otherwise marginalised. Within that, the Applicant started his own program where he gave free haircuts. Mr Luteru mentioned the positive demeanour of the men when their grooming was completed. Some of the men who attended the Local Drug Action Team sessions also came to Street Church. The Applicant attended the Local Drug Action Team and Street Church almost every week.
In addition to his volunteer work through the church, the Applicant did some voluntary work in his brother-in-law’s barber shop, which turned into part-time paid employment.
In September and October 2022, the Applicant was assessed by a forensic psychologist, Ms Denise Cullen, for the purpose of his upcoming sentencing. Her report indicated that there was a medium risk of re-offending.
On 12 December 2022, the Applicant was sentenced to:
·seven years imprisonment for trafficking in dangerous drugs;
·two years and six months imprisonment for unlawful supply of weapons of a D/H/R and Shot Firearm category (x 2);
·12 months imprisonment for unlawful supply of weapons of various categories (x 6); and
·three months imprisonment for contravening an order about information necessary to access information stored electronically (x2).
The Applicant was also convicted, but not further punished, for possess utensils or pipes etc for use, and possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act. He had served 740 days on remand, which was declared as time already served. His parole eligibility date was set at 12 June 2023.
In the sentencing proceedings, there was one aspect of the Crown’s Statement of Facts that the Applicant disputed. That was the claim that he and his brothers had all told the LEPs that they did not use methamphetamine. Instead, the Applicant’s barrister said the Applicant had, at the time, been a user of methamphetamine, and the learned Judge accepted that. In relation to supplying drugs, the Applicant had earlier told Ms Cullen he had “started small” by selling to friends but the enterprise developed over time, adding “When you start smoking, you know the right people to approach”. He denied that his offending was highly organised or sophisticated, characterising it to her as something that evolved organically.
In January 2023, Queensland Corrective Services assessed the Applicant as having a moderate risk of re-offending.
The evidence before me indicates that the Applicant served the custodial part of his sentence without incident. His visa was cancelled in March 2023. When he was granted parole in June 2023, he was transferred to immigration detention from prison.
On 20 June 2023 the Applicant’s (then) lawyer wrote to the Respondent’s department in response to information about the false statements in the Incoming Passenger Cards. The letter stated that the Applicant “deeply regrets his actions and is genuinely remorseful” and that since the incidents:
“He has demonstrated a strong commitment to personal development and reintegration into society. His dedication to rehabilitation underscores his genuine desire to change and to be a law-abiding member of the community”.
The Applicant’s actions after entering immigration detention called that assurance into question. On 12 October 2023, he was abusive and aggressive towards an officer when his family came to visit him. He tried to give a wrapped chocolate to his partner and was informed of the policy that food can only be issued and consumed by children. He then offered it to a child that was at another visit after checking with the child’s parents first. He then handed his phone to his partner, but he was told he was not allowed to share his phone. He became abusive and aggressive stating “Fuck you suckers, cock suckers”. On 22 October 2023, he was among multiple detainees who were verbally abusing and threatened physical violence towards staff.
In the hearing, the Applicant explained that the first incident occurred because of the frustration he felt as the rules seemed to change all the time, and he was trying to get his wife to help him with something on his phone. In relation to the second incident, he claimed that the officer involved was a bully who had previously been the subject of complaints and mediation, and that he was bulling a detainee at the time. There is no evidence to corroborate that. In any event, the Applicant conceded that his behaviour on both occasions was not the appropriate response.[16]
[16] Transcript, page 31, line 35 to page 32, line 25.
There have not been any other instances of poor behaviour in detention.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires 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. I 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. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(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)…;
(iii)…;
(b)…:
(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 impact of the offending or other conduct on any victims and their family
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)…;
(i)…
While the Applicant has not inflicted violence on anybody, he was a party to a violent crime. That offence is, therefore, very serious. The victim was in a vulnerable position, asleep in his vehicle, without accommodation. He suffered the loss of several of his belongings, including the keys to that vehicle which was his home at that time, and he suffered physical injury.
The Applicant’s traffic infringements are serious when considered as a whole. The system of licensing seeks to ensure that only people who meet certain standards are operating vehicles on the roads, in the interests of road safety. The Applicant persistently undermined that system. On top of that, he drove above the speed limit, sometimes by over 30 kmph. Fortunately, he did not hurt anyone, but he engaged in conduct that tends to increase the risk of a collision. He showed disregard for the safety of others.
In relation to the index offences, the Applicant was convicted and sentenced only on the basis of the drugs and firearms he supplied to the LEPs. In the hearing, he initially claimed that he did not sell to anyone except the LEPs. He said, “They were the only people I dealt with, Member”.[17] I can accept this in relation to the firearms because he only supplied firearms after the LEPs asked him to. However, I do not accept it in relation to the drugs. He was a primary target of the police operation which strongly suggests that thought he was supplying drugs. The statement of facts referred to him having runners working for him and using sophisticated measures to avoid detection. Whereas his barrister disputed one aspect of the statement of facts in the sentencing proceedings, he did not object to the statement, “The true extent of the defendants' customer base and transactions beyond their dealings with those LEP's is unknown”. When these matters were put to the Applicant he said:
“Like, during my drug use, I was buying and, you know, or swap for whatever, Member. It started off with, you know, I needed money to support my family, but then with my drug – my drug use, I ended up needing money to support my own habit.”[18]
[17] Transcript, page 16, lines 1 to 16.
[18] Transcript, page 20 lines 27 to 36.
When asked if he meant he was selling to people other than the police, he answered in the affirmative. I am satisfied that the Applicant circulated methamphetamine in the Australian community, and that he thought the methamphetamine and firearms he sold to the LEPs was going into the Australian community.
The Applicant’s brothers played smaller roles in the criminal enterprise. They were each involved for short periods and their involvement was by way of providing assistance to the Applicant. The Applicant was not forthcoming about how they became involved, but he did concede that he was the leader in the offending.[19]
71. While the drugs and firearms offences do not come within the categories of offences that the Direction deems to be serious or very serious, it is open to me to find that they were very serious for other reasons. Indeed, it is the Tribunal’s duty to take all reliable evidence into account and to assess the nature and seriousness of the offending. I am satisfied that the offences were very serious for the obvious reasons that the Applicant was dealing in deadly weapons and very harmful drugs, albeit the specific offences he was convicted of did not result in drugs or firearms entering the community. That was only though happenstance. The inclusion of a silencer with the firearms that were supplied is particularly horrifying because as silencers are associated with the covert use of guns to kill or maim, and the Applicant must have known that. Despite the Applicant’s reluctance to concede this, I find that his offending did involve organisation and sophistication. The sentences imposed, including a seven-year term of imprisonment, reflect the seriousness of the offending. The learned sentencing Judge said the following:
“Dangerous drugs cause much misery and harm to our community, and users of those drugs destroy their lives and the lives of those around them in every respect. Users of dangerous drugs irreparably damage their mental and physical health, and they become addicts, resorting to crime to feed their addiction. That, in turn, causes further harm to others. Ultimately, users are financially ruined and become social outcasts.
Persons who traffic and supply dangerous drugs, such as yourselves, provide the means by which other persons destroy their lives and damage themselves and your community. It is an aggravating factor when that is done a commercial purpose, as was done here, where there was a motivation for financial reward and an expectation of profit. To my mind, that is an example of cynical and selfish behaviour and criminality without regard for yourselves and your community.
It matters little here in this case that the drugs that were sold and supplied were to law enforcement participants. None of you knew that was the case at the time. It is fortunate that those drugs did not find their way into the community, but it is not a matter that detracts from the remarks that I have just made.”
[19] Transcript, page 21 lines 9 to 37, page 23, lines 30 to 24.
His Honour also pointed out that the use of cipher phones was a hallmark of organisation, and that the Applicant enlisted the assistance of others. In relation to the supply of firearms, His Honour said:
“Supplies of firearms are also enabling the use of firearms, or the potential use by others of firearms, for other purposes, including other criminal purposes. The unlawful supply of firearms in these circumstances has a clear risk of facilitating further offending by others and potential harm to others and the community. Those supplies of firearms were conducted as part of a business venture. Similar to the drug trafficking, it was organised. It was for profit as well.”
I respectfully agree with the learned Judge’s observations.
The Applicant’s traffic offending was frequent. When that stopped, he engaged in multiple supplies of drugs and firearms, which I class as frequent. There was not a consistent trend of increasing seriousness in the Applicant’s offending, but the recent offences were more serious than the previous ones. The cumulative effect of the driving offences was a generalised increased risk of harm to other road users when he was on the road.
Twice, the Applicant provided false information to the Department by not disclosing prior criminal offending. In June 2023, his (then) lawyer wrote to the Department, claiming that he ticked the wrong box by mistake. It was explained that he was on a suspended sentence, which he erroneously believed would not necessitate the disclosure of his prior offences, and that it was not an intentional act of deception. However, this explanation does not make sense and, in any event, the Applicant was never on a suspended sentence. In the hearing, the Applicant said he knew he had been convicted in 2009 but he thought the question meant “like, if I’d been to jail”.[20] The question is clear. I reject his explanation.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
[20] Transcript, page 29, lines 30 to 35.
Here I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[21]
[21] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant 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 available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[22]
[22] Paragraph 8.1.2(2) of the Direction.
Further traffic offences will increase the risk of collisions that result in physical and psychological harm to road users. The harm from further offences like the robbery with violence includes financial, physical and psychological harm. The harm from the circulation of harmful drugs in the community includes physical and psychological harm to users along with a range of secondary harm to others in the community, for example drug related crimes or the neglect of dependent children. Firearms are designed to inflict catastrophic injury. There is a very good chance that a person who illegally obtains a firearm has a nefarious purpose. The harm from the illegal circulation of firearms is the creation of a very real risk that the weapon will be used to cause serious physical injury or death, along with the secondary psychological and other impacts on the victim (if the victim survives) and those close to the victim. Given the gravity of this potential risk, very strong countervailing factors would be required in order to justify revoking the cancellation of the Applicant’s visa.
The Applicant has not engaged in any behaviour similar to the robbery with violence in over 16 years. I am not satisfied that there is any more than a remote risk of him engaging in that sort of offending in the future.
The risk of further driving without an open license would be avoided by the Applicant qualifying for an open license. There is still the matter of speeding and other infringements. Behaving in a way that respects road rules and road safety requires a change in attitude. The Applicant’s most recent traffic infringement was in 2018.
It was common ground between the parties, and I accept, that the two key contributors to the index offending were drug addiction and financial stress.[23] The Respondent contended that, given the severity of harm from this type of offending, any material risk of it being repeated is unacceptable, and there remains a moderate risk of that. The Applicant contended that the risk was now low enough to be acceptable. The legitimacy of Ms Cullen’s risk assessment was not disputed by either party, although it is nearly two years old. The Corrective Services risk assessment is a little more recent. Both reports assessed the risk as moderate.
[23] Transcript, page 97 line 35 to page 98, line 5.
The Applicant intends to work as a barber if he is released, and work towards qualifying to be a mechanic. He does not know what he would be paid or whether he needs a Blue Card to work as a barber or whether he would get one.[24] However, his family would not be solely reliant on his income. When he committed the index offences, Ms Telesi was unemployed with four young children at home. Now, her eldest is 18, and she has a part-time job with flexible hours. She and the children now live with the Applicant’s mother, who is also employed.[25] The Applicant plans to move in with them if he gets his visa back.[26] Further, as long he remains abstinent from drugs, he will not have a drug dependence to pay for.
[24] Transcript, page 12, lines 22 to 35.
[25] Transcript, page 58, lines 1 to 40.
[26] Transcript, page 6, lines 31 to 36.
The Applicant has not used drugs or re-offended since his arrest in September 2019. The period of abstinence and good behaviour includes 15 months when he was on bail in the wider community. He had an interest in behaving himself while on remand, and then bail, as he was going to be sentenced and he did not want to be locked, separated from his family. His good behaviour was self-serving in that sense. However, reform is reform. He continued to exhibit good behaviour while serving his prison sentence and while in immigration detention, with a couple of minor exceptions. This is the outcome society hopes for when a person is sent to prison. The question is – will he continue his good behaviour? Is his reform permanent?
The evidence about the Applicant’s character is hard to reconcile. On the one hand, he knowingly engaged in illegal conduct that had the potential to cause great harm, and he involved his brothers in it. Consistent with that, the actuarial assessment tools Ms Cullen used indicated tendencies towards narcissism, a criminal belief system, entitlement, and difficulty making a connection between actions and consequences. However, she concluded that he did not present with underlying attributes associated with antisocial personality disorder or psychopathy.
On the other hand, there are numerous letters from friends and family members that attest to the Applicant’s good character. Many describe him in glowing terms, some focus on qualities and others on behaviour. Some describe specific events, such as the letter from Pastor Abel Afele, who grew up with Applicant and recounted (among other things) the Applicant holding him back from getting into a physical fight, reminding him to respect the elderly and encouraging him to dispose of his rubbish at a fast-food outlet rather than leaving it for the staff to pick up. Likewise, the Applicant’s sister-in-law (Shalom’s wife) recounted many instances over a long period when the Applicant showed responsibly and maturity and went out of his way to help her and others. She wrote that reference despite knowing, by then, that the Applicant had involved her husband in serious crimes. When Ms Telesi was asked about the impact of the offending on her in-laws, she said “they were also struggling throughout this entire journey”.[27]
[27] page 60 line 35
Almost all the witnesses described the Applicant as honest, whereas he was not entirely honest in his evidence to the Tribunal. Further, he lied in two Incoming Passenger Cards, although he did that in the years when his ice addiction was severe. The witnesses describe the Applicant as family oriented, whereas at the height of his drug addiction, he was so neglectful of his family that his wife was ready to divorce him.
The character references describe the Applicant’s offending as out of character. That is an easy thing to say, and it is a convenient way to explain away bad behaviour. I tend to regard with caution any assertion that a person’s criminal acts are out of character, especially where it is made by someone, such as a friend or family member, who is naturally inclined to view the person in a positive light and may have a vested interest in the outcome. Further, the index offending continued over a substantial period of time.
Some of the character references were before the Supreme Court. The learned sentencing Judge accepted that the authors of the references were genuine in what they wrote, but he noted that the offending showed another side to the Applicant’s character. His Honour pointed out that the Applicant had not, in fact, shown respect for his culture, family and community. He had not displayed the traits and characteristics that those who knew him had attributed to him. I respectfully agree with His Honour’s assessment. However, having considered all the evidence, including the oral evidence given by the Applicant's counsellor, Mr Iakopo and his longtime friend, Pastor Roger Afele,[28] I am persuaded that the Applicant’s criminal offending was indeed out of character. However, he clearly must stay away from drugs, and make sure he does not make dangerous choices in times of stress because that brings out very serious, aberrant behaviour.
[28] Not to be confused with Pastor Abel Afele.
There is overwhelming evidence of the Applicant’s long-standing love and devotion to his wife and four children. I am satisfied that he is highly motivated to stay away from drugs and out of trouble so he can live with them. As he explained:
“I’ve got too much to lose now, Member. I’m coming up to 1250 days since I’ve been away from my kids, 740 days jail.”[29]
[29] Transcript, page 42, lines 25 to 26.
Ms Cullen pointed out several anchors in the Applicant’s life, including his marriage, expected employment and volunteer work that would tether him to more prosocial thinking and behaviour. She opined that if he could maintain abstinence, increase his circle of prosocial friendships and activities, and continue to engage in lawful employment, his risk of reoffending would likely reduce over time. She recommended he engage with a psychologist to maintain abstinence and address issues relating to his mental health and offending behaviours. The Applicant did not recall seeing the report or being aware of that recommendation. However, he has, since then, engaged in rehabilitative drug and alcohol courses and counselling. He has not engaged with a psychologist, but since November 2023, he has engaged with Mr Manny Iakopo, a counsellor who specialises in trauma therapy, cultural therapy and addiction therapy.
Mr Iakopo gave evidence that his therapy has focussed on dealing with the underlying reasons for the Applicant’s drug use and antisocial behaviour. When told about the traits that Ms Cullen had identified, he opined that they were signs and symptoms of trauma. He said he saw a lot of those traits come out during his sessions with the Applicant. He and the Applicant identified a lot of the “software issues” and have been trying to “rewire” so that those mistakes do not occur again.[30] Mr Iakopo said that the major source of trauma for the Applicant was his experience of abuse and abandonment by his father. Through therapy, he has repaired that relationship and thereby made great progress in healing from that trauma. He has also strengthened his sense of self-worth through alignment with his cultural values - including family, love, respect, service, community, reciprocity, culture and spirituality. They have explored the consequences of the Applicant’s antisocial behaviour: the way drug use impacted his life and the fact that his offending for financial gain did not help his family, but it instead did the opposite.
[30] Transcript, page 51, lines 29 to 33.
Mr Iakopo indicated that he would never predict how long it would take for a person to recover because it varies from person to person. He intends to continue therapy and chaperone the Applicant in his engagement with other types of groups or programs that would benefit him to ensure he continues to get the help that he needs to make a full and permanent recovery.
The Applicant’s wife attested to the Applicant’s meaningful engagement in his rehabilitative journey. She and the Applicant speak about the SMART Recovery program that he does in the detention centre, and she has noticed that he is a lot more open now, whereas he previously found it very hard to express his feelings. She recalled that as soon as he was arrested, he was extremely apologetic to her. Since then, she has seen him progress and “put his all in trying to come home”.[31]
[31] Transcript, page 55, lines 27 to 44; page 57, lines 28 to 29.
Pastor Roger Afele has known the Applicant and his family since childhood. He moved away for ministry in 2015, but they keep in touch. He, like the Applicant, had a difficult youth, and struggled with a sense of alienation, being a Samoan in Australia. Pastor Afele was a compelling witness. That is not to say I accept everything he said, for example I do not accept that “guns don’t kill people…it’s the people….who kill people.”[32] He was compelling because he gave well-informed, open, and even enthusiastic evidence about the Applicant’s character, history, struggles, family and commitment to doing the right thing going forward. He also spoke about his own commitment to supporting the Applicant in that. Although he clearly regards the Applicant in a positive, sympathetic light, I did not get the sense that he gave untrue or curated evidence. I accept the following evidence given by Pastor Afele.
[32] Transcript, page 74, lines 42 to 43.
Pastor Afele has known the Applicant for 25 years. His father was a drug addict. He and the Applicant have helped each other through some hard times. They both did Pathfinders, which is similar to Scouts. Through that, they went camping and learnt life skills. They were also heavily involved in community and volunteer activities like Clean Up Australia Day, visiting the elderly in nursing homes, and helping with fundraisers for the Heart Foundation.
Pastor Afele used to abuse marijuana. A mentor figure took him under his wing, and he is now a church leader. As part of his ministry, he helps drug addicts to overcome their addictions. He believes the opposite of addiction is connection. He intends to mentor the Applicant, mostly by via video calls, and ensure he has better connection to his church and community. He undertook to continue his friendship and support and provide accountability to help the Applicant. Further, if the Applicant were to get his visa back, Pastor Afele would feel a moral obligation to make sure he was worthy of his visa. He would see it as him failing the Applicant otherwise.
The Applicant and Pastor Afele already have a relationship where they can discuss personal matters. They have had reflections on the pain drug addiction causes families, and discussed their traumatic experiences. Pastor Afele said the Applicant can recount all the mistakes they had made from when they were young, and he has grown from them. He believes that while he mentors the Applicant, the Applicant could mentor someone else.
Mr Luteru has also put himself forward as a mentor. He is of the view that the Applicant has learnt his lesson. They have had conversations about values and faith. Mr Luteru indicated that, in addition to the Applicant’s volunteering activities, he has gone out of his way to help people and encourage young people to do the right thing, like find a career or occupation, something that would help them.
Pastor Abel Afele has known the Applicant for 23 years and he lives in Brisbane. He has mentored young men who have come out of Bathurst jail who have successfully turned their lives around. He is committed to supporting the Applicant’s journey towards rehabilitation. He thinks the Applicant has made progress and that he can have a positive influence on the community.
Both Shamish and Shalom are living in the Australian community. There is unchallenged evidence before me that they are both leading pro-social lives.[33] They want the Applicant to stay in Australia. They have both pledged their support.
[33] Exhibit A4, pages 3 to 6.
In addition to his counselling with Mr Iakopo, the Applicant engages in SMART Recovery sessions every week. He has a detailed, realistic reintegration plan and list of rehabilitative service providers that include:
·AODS (for Rehabilitation);
·Healing Rain Australia (Mens Health Group);
·PACFA/Legacy Connect (Mr Iakopo);
·Universal Class (Drug and Alcohol online courses);
·ATSICHS Mens Group (Community Support); and
·Lives Lived Well which provides general rehabilitative courses and support.
The Applicant also plans to resume his volunteer work with the church.
Many of the risk factors that Ms Cullen identified in her report have, and are, being addressed. In that sense, her risk assessment is out of date. I think the risk that the Applicant will re-offend is lower than moderate. I assess it as very low, but not remote.
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here, I should consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
· how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
o less weight should be given where the Applicant began offending soon after arriving in Australia; and
o more weight should be given to time the Applicant has spent contributing positively to the Australian community;
· the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived in Australia for 23 years, having arrived as a 12-year-old child. He committed his first offence around five years later, which I do not regard as soon after arrival. In his youth he engaged in community and volunteer work through his church, and he recently did more of that in 2022. He has held employment when he was physically able to.
The Applicant has a great many relatives in Australia, but he only has meaningful bonds with some of them, and none are in any way dependent on him. I allocate only limited weight with respect to his extended family.
The Applicant’s immediate family are his wife, three children, mother, three brothers, one sister, and some in-laws. They all live in the same general area. Most of these people wrote letters of support, including the brothers whom he involved in his offending, and the wife of one brother. His mother-in-law also wrote a letter of support. His wife visits him regularly with their children, and she gave evidence. They all spoke well of him and want him to remain in Australia.
At a young age, when most young men are not ready for children, the Applicant became a father to Ms Telesi’s infant daughter and raised her as his own. She came to the hearing to support him. The evidence from family members and friends who know the Applicant’s family painted him as a devoted, engaged and responsible family man. His sister described him taking on a parental role for his younger siblings in the absence of their father. Pastor Roger Afele described his gentle, nurturing relationship with his wife and children. He indicated that the Applicant was consciously parenting his children differently to the brutal way his father parented him.
Before he was arrested, the Applicant’s behaviour changed, with some angry, aggressive behaviour, and absences from the family home, according to Ms Cullen’s report. He also allowed two of his siblings to get involved in serious crimes. However, despite that, I accept that he has very strong, long-standing, positive bonds with his immediate family and in-laws.
I accept that the Applicant is a very important part of his immediate family. I can readily accept that his absence from Australia will cause emotional hardship to his wife, children and mother. Additionally, three of the Applicant’s siblings[34] have indicated that his deportation would have a significant emotional impact on the family. In 2016, the Applicant’s brother, Shalom, and his wife named one of their children after him (a middle name) signifying his importance to that family.[35] While none of the Applicant’s siblings or in-laws are dependent on him, I accept that they will suffer emotional hardship if he is removed to New Zealand.
[34] Shalom, Shamish and Shayann.
[35] Exhibit RB, page 770.
The Applicant’s wife has struggled to be the breadwinner and raise four children without him. She misses him and she sees that their children do too. She now works up to 36 hours per week which means the older children have to help get the younger one get ready for school, prepare his meals etc, which they find tiring. She is also sometimes unable to take the children to school due to her work and if no-one else can help, the children do not go to school, and her eldest daughter minds them at home.[36] Ms Telesi did not strike me as a parent who does not value education, but she has found herself in this situation in her efforts to financially support her family. Very recently, the family moved in with the Applicant’s mother and two of his siblings. The Applicant’s brother, Shaun, now helps with the children.
[36] Transcript, page 58 lines 5 to 20.
Ms Telesi was born in Australia and so were all four children. She does not think she could cope if the Applicant were deported, and she does not want to move to New Zealand. She thinks it would be incredibly hard to leave her parents and family, and her children would be miserable, away from their extended family, including cousins who they see every day at school. However, she and her children love the Applicant and do not want to be without him.
Throughout the previous proceedings and these proceedings, Ms Telesi and the Applicant have given inconsistent, sometimes equivocal, evidence about whether she and the children would follow him to New Zealand. I do not think this is indicative of insincerity, but rather it indicates that Ms Telesi is torn between two options that she considers equally detrimental for her and her children, and while the Applicant does not want to live without his family, he will respect his wife’s decision. Either way, I am satisfied that the Applicant’s wife and children will be much better off if he remains in Australia.
I am satisfied that the Applicant has substantial social connections in the form of long-term, devoted friends, and also connections through his church and voluntary work.
Pastor Roger Afele keeps in touch with a lot of young people in Logan where, he said:
“a lot of people like myself are just making wrong choices because they don’t have just better opportunities or someone to show them that actually it’s going to be hard but there’s still other choices we can make to have a better future”.[37]
He opined that these youth are taking the wrong path because:
“they can’t find identity at home, they can’t find identity in church or school, and so they go find it elsewhere”.
[37] Transcript, page 73, lines 35 to 40.
He believes they need mentoring to “to just close the gate as much as we can, to better the community”. He expressed the view that the Applicant could mentor these young people, saying:
“Why not have someone who’s going to be able to mentor these young ones and show them that there are other opportunities, that there are other avenues than the one that they’re going to choose…?”.[38]
[38] Transcript, page 71, lines 15 to 25.
He said it would be “a win for Logan…a win for the community that he lives in” if the Applicant got his visa back and could draw on his own experience to help the youth in Logan.
I accept Pastor Afele’s evidence and I accept that, if given the opportunity, the Applicant would help youth in his local community to live positive, productive lives. He has not only said he wants to do that, he previously did do that in an informal way when he was on bail. During that time, he proved his willingness to help others in the community, including those who were vulnerable to drugs. I accept that the Applicant’s connection to his local community is one that will yield benefits to the community, particularly in terms of treating marginalised community members with dignity and steering vulnerable or disaffected people towards a pro-social lifestyle.
I allocate very heavy weight to this Primary Consideration.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I must determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision. Where there is more than one child affected, the best interests of each child should be given individual consideration to the extent that their interests may differ.[39]
[39] Paragraph 8.3 of the Direction.
The Direction sets out a number of factors to take into consideration, which relevantly include:
· the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where…there have been long periods of absence, or limited meaningful contact;
· the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;
· the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
The Applicant has three minor children. Child A is 13 years old, Child B is 12 years old, and Child C is seven years old. The children were traumatised when the police raided the family home as a result of the Applicant’s offending. The Applicant admitted that he had been drug affected around his children. Some of his behaviour, therefore, has had a negative impact on his children. Apart from that, there is strong evidence that he was a good parent. For example, according to Ms Telesi, her eldest daughter found out two years ago that the Applicant was not her biological father. Her response was that she did not care because he was there for her, and she considered him to be her father “whether it’s by blood or not”.[40] As stated earlier, she attended the hearing to support the Applicant. While she is no longer a minor child, her words and actions speak to the kind of parent the Applicant is when he is not abusing drugs.
[40] Transcript, page 56, lines 40 to 41.
Other witnesses, including Pastor Roger Afele and Shalom’s wife, attested to the Applicant’s positive presence in his children’s lives when he was in the community. In particular, the Applicant did not perpetuate the brutal parenting style that he grew up with: he consciously broke away from that and has been described as mentoring and loving towards his children.
The Applicant has been physically absent from these children for the last five years, although he stays in frequent contact, including visits. Ms Telesi said the children expect to visit him every week (which they do), as they prefer face to face contact rather than video calls.
According to Ms Telesi, and Child B who wrote a letter, the children miss the Applicant and long for him to come home. Emotionally, it is harder on Child C because the Applicant has been away since he was three years old. As a working single parent of three minor children, Ms Telesi carries a heavy load. The older children have had to do some parenting of Child C, and sometimes they miss school because there is no-one to take them, although that situation appears to have resolved recently. While the children have Ms Telesi fulfilling the parenting role, and she is doing the best she can, I accept that the children would be better off if the Applicant were in their home to share the parenting, rather than the family having to rely on the availability of relatives to help. I also accept that the children would be better of emotionally and psychologically if they had their father with them in their daily lives. Given the ages of the children, there are many years in which the Applicant will positively contribute to their lives while they remain minors, especially Child C, if he gets his visa back.
I accept that if the Applicant is deported and his wife and children stay in Australia, the children will be bereft and they will only have one loving, nurturing parent in their lives rather than two. That one parent will likely continue to struggle as she does now. These detriments will be offset somewhat by the ability to remain in touch with the Applicant by telephone or electronic means, the occasional visit to New Zealand if finances allow, and the other close family members that are in Brisbane.
Following the Applicant to New Zealand would mean leaving the only home the children have ever known, all that is familiar to them, and their extended family and friends. That includes grandparents, uncles, aunts and cousins who spend time with them and have helped care for them. In particular, there are cousins who they see at school every day. They have told Ms Telesi that they do not want to leave their cousins. Their only family in New Zealand is an uncle and aunt of Ms Telsesi. They do not have friends in New Zealand. I am satisfied that with time they would make friends and settle into a school community, but it will not be the same as the community they have around them in Australia.
There are some other minor children with whom the Applicant has meaningful relationships. They are the children of his siblings, a couple of cousins and a couple of friends.[41] When he was in the community, he saw some at football games, he had a lot of contact with Shalom’s children on weekends, he had some contact with Shamish’s very young children, and he saw a fair bit of Ms Telesi’s brother’s children who regularly visit him in detention. Pastor Abel Afele said his four children see the Applicant as a positive role model, and his deportation would affect them emotionally. I accept that these children have positive relationships with the Applicant, however they are not dependant on him in any way and they all have parents caring for them. I allocate very limited weight with respect to them.
[41] Transcript, page 35, line 5 to page 39, line 24.
The Applicant is related to numerous other minor children, but he has only occasional contact with them and there is not enough evidence before the Tribunal about them to allocate any weight on their account.
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[42]
[42] Paragraph 8.4(1) of the Direction.
A visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[43]
[43] Paragraph 8.4(3) of the Direction.
The Applicant has breached the expectations of the Australian community by committing serious crimes that could have caused great harm to members of the community. He has also shown disregard for the road rules, and therefore the safety, of the Australian community.
Primary Consideration 5 must weigh heavily against revocation of the cancellation of the Applicant’s visa.
EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account:
(a)the Applicant’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 the Applicant in New Zealand.
The Applicant is a 35-year-old man who is able bodied, except for a congenital vascular abnormality in his leg that causes frequent swelling and pain and impacts his ability to perform some employment-related duties to the point that he cannot work. When it flares up, he takes medication. He does not have any current, diagnosed psychological conditions but he has in the past been diagnosed with a substance use disorder in remission, and some of the counselling he has engaged in with Mr Iakopo has been aimed at treating depression and anxiety.
There is no evidence as to whether the Applicant could access suitable treatment for his ankle condition in New Zealand as he has not made any enquiries about that, despite the issue having been raised in the previous Tribunal proceedings. As a citizen of New Zealand, the Applicant will have the same access to social, medical, mental health support and economic support as other citizens. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[44]
[44] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
The Applicant lived in New Zealand until the age of 12, and he has been back three times including twice as an adult, in 2016 and 2019. I am satisfied that he would not face any substantial language or cultural barriers there.
I accept that the Applicant’s criminal record will make some types of employment unavailable to him, however I am satisfied that he could still obtain employment as he did in Australia with a criminal record. I accept that the Applicant has only ever held jobs that involve manual labour or barbering, which required him to stand for long periods. This means that, realistically, work involving standing or moving his legs is what would be available to him, so his ankle condition could well impact his ability maintain employment. However, he will be able to access government income support if he is unemployed or underemployed.
The Applicant does not know anyone in New Zealand. His father lives in Samoa. The Applicant has “a few aunties and uncles” on his mother’s side there, but he is not in contact with them. To his credit, in the previous Tribunal hearing, when he was asked if he would reach out to those relatives if he had to return to New Zealand, he said he would.[45] He could easily have said he would not as he does not know them, leading to the conclusion that he would be completely alone and isolated. His honesty against his own interests on this topic, and on some other topics, somewhat counterbalanced his attempts to minimise his offending, which is something I took into account when assessing his character. Ms Telesi also said he would reach out to an uncle and aunt she has in New Zealand and ask them to assist him to get on his feet.[46]
[45] Exhibit R2, pages 16 to 17.
[46] Exhibit R2, page 57.
I am satisfied that, even if the Applicant’s family do not follow him to New Zealand, he would have some support from, and connection with, relatives in New Zealand, although he does not have existing relationships with these people. It would also be open to him to join a church and forge some connections in the community through volunteer work. He would be able to maintain telephone/video contact with his family, and his wife and children would visit if they could afford it. He would continue to have online counselling with Ms Iakopo. He could maintain communication with the friends and relatives with whom he maintains contact in detention. He would have plenty of psychological and emotional support, but he would also suffer a great deal of emotional hardship being separated, probably on a permanent basis, from his wife and children.
I am satisfied that, if the Applicant’s wife and children were to follow him to New Zealand, he would still miss his other family members and the life he had in Australia, but he would have the most important people in his life with him. He may experience some difficulty helping his family to adjust to a new environment and a new life that they do not want.
Either way, I am satisfied that the Applicant could establishing himself and maintain basic living standards in New Zealand.
I allocate only marginal weight to this Other Consideration in favour of revocation of the mandatory cancellation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1 and 5 weigh heavily against revoking the visa cancellation. Primary Consideration 3 weighs very heavily in favour of revocation, Primary Consideration 4 weighs moderately in favour of revocation and I allocated marginal weight in favour of revocation under Other Consideration (b). At this point, the balance favours revocation.
Generally, more weight should be given to Primary Consideration 1 than the other Primary Considerations. In this case, there would be an uplift to, or emphasis on, the weight given to Primary Consideration 1 relative to Primary Considerations 3 and 4. However, in the particular circumstances of this case, I decline to follow the general rule.
Primary Consideration 1 concerns the Protection of the Australian community. It looks backwards and forwards. It is implicit that the decision-maker, when looking forwards, is to consider the protection of the Australian community from the non-citizen. However, the Applicant’s links to the Australian community (Primary Consideration 3) are likely to work in favour of the protection of the community from crime in general. Two reliable witnesses gave evidence that indicates that, if the Applicant is returned to the Australian community, he will help others to avoid drugs and engage in positive activities rather than anti-social activities, and that is corroborated by other evidence. Pastor Roger Afele’s evidence indicated that the Applicant’s local area is in particular need of good mentors for young people. Accordingly, I decline to give an uplift to Primary Consideration 1. The balance still tips, although only slightly, in favour of revocation.
There is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is set-aside and the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 151 (one-hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
......[SGD]..........................
Associate
Dated: 25 September 2024
Date of hearing: 5 and 6 September 2024 Solicitor for the Applicant/Applicant:
Ms Tiffany Louise Ozherelyeva of Samuta McComber Lawyers
Solicitor for the Respondent Mr Jake Kyranis of Sparke Helmore Annexure A: Exhibit List
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
RB
Remittal Bundle (RB1 to RB6, 885 pages)
RB1: G-Documents
RB2: Tender Bundle
RB3: Evidence
RB4: Tribunal’s Decision
RB5: Order of FCA
RB6: Direction 110R
Various
24 June 2024
A1
Applicant’s Statement of Facts, Issues and Contentions (36 pages)
A
Undated
27 July 2024
A2
Applicant’s Reply (7 pages)
A
30 August 2024
30 August 2024
A3
Applicant’s Tender Bundle (AM1 to AM18, 37 pages)
A
Various
30 August 2024
A4
Applicant’s Further Tender Bundle (AFTB1 to AFTB7, 11 pages)
A
Various
2 September 2024
R1
Respondent’s Statement of Facts, Issues and Contentions (17 pages)
R
9 August 2024
9 August 2024
R2
Transcript of Proceedings 22 January 2024 (items 1 to 6, 191 pages)
R
22 January 2024
9 August 2024
0
3
0