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

[2020] AATA 658

Bloomfield and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 658 (24 March 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0022

Re:Uili Bloomfield

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:24 March 2020

Place:Sydney

The decision under review is affirmed.

..............................[sgd]..........................................

Mr S Evans, Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class BB, Subclass 155 Five Year Resident Return visa – Applicant is a citizen of Tonga – failure of the character test – whether discretion should be exercised to cancel visa – Direction No 79 – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) s 501

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Mr S Evans, Member

24 March 2020

1. Uili Bloomfield (“the Applicant”) is a citizen of Tonga who first arrived in Australia on 24 July 1984 at the age of 20. On 15 June 2019 the Applicant was given notice that his Class BB, Subclass 155 Five Year Resident Return visa (“the visa”) may be cancelled under subsection 501(2) of the Migration Act 1958 (Cth) (“the Act”) by a delegate of the Minister (“the Minister” or “the Respondent”) as he had been sentenced to a term of imprisonment of 15 months, served by way of intensive correction order, on 18 August 2015 and consequently he failed to pass the character test.

2. The Applicant was invited to make representations on the notice of intent to cancel his visa and he did so on 17 October 2019 and 8 November 2019. A delegate of the Minister decided to cancel the Applicant’s visa under section 501(2) on 17 December 2019, and the Applicant was notified on 18 December 2019.

3. The Applicant has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the cancellation decision.

4. The matter was heard on 10 and 11 March 2020 at the Administrative Appeals Tribunal in Sydney. The Applicant appeared in person and provided oral evidence. He was represented by his partner, Ms Madden.

5. The Tribunal heard oral evidence in support of the Applicant from his daughter Ms T; and also has before it written evidence and submissions. The totality of the evidence has been carefully considered.  

   THE RELEVANT LAW

6. Subsection 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.

7. The character test is defined in s 501(6) of the Act. Relevantly, a person will not pass the character test if they have a “substantial criminal record”. Subsection 501(7) determines a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

8. Should a finding be made that the Applicant does not pass the character test, the discretion to cancel a person’s visa under s 501(2) is enlivened. In exercising the power under subsection 501(2), the Tribunal must take into consideration the guidance set out in Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).

9. The Direction sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel a person’s visa, on the basis that they have a substantial criminal record as defined in s 501(6) of the Act.

10. When considering whether or not to cancel a visa under s 501(2), paragraph 7 of the Direction sets out how the discretion is to be exercised. It states:

    Informed by the principles in paragraph 6.3…, a decision-maker:

    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…

11. Part A of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to cancel a non-citizen’s visa. The primary considerations should generally be given greater weight than the other considerations. The primary considerations, outlined in paragraph 9 of the Direction, are as follows:

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

12. The other considerations which must be taken into account where relevant are outlined at paragraph 10(1) of the Direction. The other considerations which are relevant to this matter are as follows:

    (b) strength, nature and duration of ties;

    (d) impact on victims

    (e) extent of impediments if removed.

    THE ISSUES

13. There two issues presently before the Tribunal are:

    (a)   whether the Applicant passes the character test; and if so

    (b)   should the visa be cancelled.

14. I will address each of these grounds in turn by considering the evidence at the hearing, the papers before the Tribunal and then applying the considerations in the Direction. 

    Does the Applicant pass the character test in s 501(6) of the Act?

15. 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 relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

16. On 18 August 2015, the Applicant was sentenced in the Blacktown Local Court of New South Wales for driving a motor vehicle during disqualification period and sentenced to a term of imprisonment of 15 months which was served by way of an intensive correction order. 

17. The issue of whether an intensive correction order constitutes a term of imprisonment for the purposes of ss 501(6)(a) and 501(7)(c) of the Act was considered in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [7]:

    The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of ss 501(6)(a) and (7). The definitions of "imprisonment" and "sentence" in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of ss 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.

    (emphasis added)

18. Consequently, I am satisfied that the Applicant does not pass the character test because of his criminal record.

    THE EVIDENCE

    The Applicant’s offending

19. The Applicant has an extensive history of offending which began soon after he arrived in Australia. The evidence before the Tribunal includes an Australian Criminal Intelligence Commission report from October 2019. The Tribunal has also been provided a copy of the Applicant’s Transport for NSW Driving Record.

    1986 – April 1998

20. In December 1986 the Applicant was fined for assault police, malicious injury and resisting arrest.

21. He was fined for drink driving in 1987, 1991 and again in 1992. The 1987 and 1992 offences are recorded as “high PCA”.

22. He was fined for providing false particulars in 1987 and received another fine for stating a false name and place of abode in August 1994. On three occasions he appeared before court charged with driving whilst disqualified during this period.

23. In April 1998 he was issued a 100 hour community service order following a further drink driving offence.

    May 1998 – March 2009

24. The Applicant was convicted of assault occasioning actual bodily harm in May 1998 following the assault of his daughter whilst drunk. At the time, Judge Tupman in the District Court remarked:

    I accept the requisite standard that the facts are that when he [the Applicant] came in, he had an argument with Vicki Bloomfield about pills that were missing from her mother’s bedroom, that he was not prepared to accept her denial that she had been involved, that he continued to ask her in an accusatory fashion about whether she took them and that he then punched her in the face five or six times causing her lip to be cut. I am satisfied to the requisite standard that he then asked her again and that when she admitted that she had taken the pills he pushed her, causing her to fall and that he kicked her in the stomach and side. I am satisfied that she went to the bathroom to wash her face and that he followed her there, asked her again and that he then punched her again, causing her to fall heavily onto the door where the handle was missing and the protruding screw lacerated the back of her head causing it to bleed.

25. He was sentenced to 18 months of periodic detention for the assault. Though he had pleaded guilty to the charge, the Applicant considered the sentence was too severe and he sought leave to appeal, which was denied. The Court of Criminal Appeal noted in July 1999:

    … her Honour was correct to remark that there was a need for a very clear message to be sent out not only to the applicant [the Applicant] but to other members of the community that the courts will treat this sort of behaviour by parents toward their children very seriously.

    …

    The nature of the offence was one which called for stern punishment.

26. In March 1999, shortly after the assault conviction, the Applicant was sentenced to six months imprisonment and disqualified from driving for a further 10 years as a consequence of earlier driving offences. 

27. The Applicant appeared at the Parramatta Local Court in March 2000 and was fined for failing to stop and give particulars and disobey traffic lights. In September 2004 he was sentenced to three months imprisonment for low range drink driving and driving whilst disqualified. In February 2006 he was sentenced to nine months imprisonment and his licence suspended for driving whilst disqualified.

28. In Darwin, the Applicant was fined $2,000 for supplying kava without a license and possession of a trafficable quantity of kava in February 2009.

    Formal counselling letter

29. On 4 May 2009 the Applicant signed and returned an acknowledgement of receipt of a formal counselling letter from the Respondent dated 30 March 2009. The letter read in part:

    The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.

30. In June 2011 the Applicant received a suspended sentence of 12 months imprisonment for driving whilst disqualified. He was also convicted of using his mobile phone whilst driving.

    Formal warning

31. In February 2012 the Respondent considered cancelling the Applicant’s visa. Whilst his visa was not cancelled, in April 2013 the Applicant was issued a formal warning which stated:

    Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered. 

    2012 – present

32. He was again fined and further disqualified from driving in October 2013 for driving whilst license suspended.

33. In August 2015 he was sentenced to a term of 15 months imprisonment, served by way of intensive correction order, for driving whilst disqualified.

34. In September 2015 the Applicant was at home and had a heated argument with his partner whilst intoxicated. During the argument he smashed the television in front of his minor son and his partner called the police. In October 2015 he was sentenced to four months imprisonment for destroy or damage property as a result of the incident. On appeal, this was varied to a 12 month bond.

    Recent traffic infringements

35. In October 2017 the Applicant was issued a learner driver’s license followed by a provisional license in December of the same year. In May 2018 he was fined following a camera detecting that he did not stop at a red arrow. In July 2018 eight separate fines were issued to the Applicant following camera detected speeding infringements. The Applicant’s license was suspended in February 2019 as a consequence.

36. The Applicant was issued fines for a further three speeding offences which were detected in February and March 2019. He received two substantial fines for disobeying traffic lights in March and May 2019. In August 2019 his license was suspended.

37. The Applicant contends that he is not responsible for the recent traffic infringements. He says that the fines were issued to a company vehicle that had been “signed out” under his name. Although others had driven the vehicle, his employer had allocated responsibility for the issued fines to him. The Applicant initially indicated that the vehicle had been hired by him and hence he was held responsible for the fines that were issued as a matter of course. Under cross examination it became clear that the vehicle was a company vehicle and that the Applicant had only produced his license so that it could be sighted by the supervisor to ensure he had a valid license. No details of the Applicant’s license were recorded by the supervisor. His employer subsequently received the fines and the Applicant was deemed responsible and the fines transferred to him.

38. He claimed that he agreed to take responsibility for the fines in exchange for more shifts from his employer as he was working as a casual. It was put to the Applicant that the fines were substantial, amounting to over $2,000, and that it was not credible he would agree to pay the fines and lose his license unless there was clear evidence that he was responsible for the infringements. The Applicant later conceded that he may have been responsible for some, but not all of the offences.

39. Based on the evidence before the Tribunal, I find that the Applicant was responsible for the infringements which are recorded on his driving record, including those which occurred in 2018 and 2019.

    Other evidence

40. The Applicant has resided in Australia since arriving in July 1984. He has regularly returned to Tonga since his arrival. When the Applicant arrived in Australia began working for a pipe supplier and he moved to Melbourne and maintained work with the same employer.  He was later employed in a car component factory prior to beginning work at a car manufacturing plant.

41. He moved to Sydney in 1991 and was employed cutting steel prior to starting work for a linen service in Western Sydney. In 2005 he injured his back and received approximately $100,000 compensation. In 2017 he recommenced work through an agency as a labourer on the Sydney light rail project.

42. He and his former partner had two daughters together who are now adults and reside interstate. The Applicant is currently in a relationship with Ms Madden. They met through mutual friends and have been together for twenty years. The Applicant and Ms Madden have three children together – a daughter aged 18 and two sons aged 16 and 13.

43. The Applicant has extended family in Australia which includes 4 siblings and 7 grandchildren.

44. The Applicant told the Tribunal that he ceased drinking alcohol when his son was born in 2003 and began drinking kava instead. He said as a Tongan it is acceptable to drink kava to relax. Whilst alcohol makes him feel angry and energetic, he is able to drink kava in the evenings and sleep at 10PM.

45. In reference to the 2015 destroy or damage property charge, the New South Wales police facts sheet stated the Applicant “walked over to the TV, picked it up with both hands and threw it across the ground and the victim immediately contacted police. As the result of the accused action the victim and her children run outside in fear for their safety”. The Applicant disagreed with this part of the statement. He said the police will “write whatever they want”. Later in the statement it is written that the accused had “a level of intoxication and aggressive behaviour” however the Applicant said at hearing that he was not aggressive and he did not feel angry but that he was tired.

46. The Applicant did concede that he was drinking red wine that night. He said he had been drinking kava for some time and he then switched to red wine and consumed approximately half a cask. It was put to him that he had earlier told the Tribunal that he stopped drinking alcohol after his son was born in 2003. He told the Tribunal that he did not believe this statement was inconsistent with the facts of that night as he now only drinks alcohol rarely. 

47. During the hearing the Applicant was questioned at length about his offending. He concedes that his criminal history is serious. Asked if he considered his driving history serious he replied “maybe”. It is the Applicant’s contention that he “has not done anything worse than a Australian person [sic]”. He was unable to explain why he was remorseful but in a statement provided to the Tribunal he notes “I have not done anything worse than a Australian person but unfortunately they have to stay as they reside here”. Asked to clarify what he meant by this statement, the Applicant said that he didn’t kill anyone or bring drugs here or rape somebody so it’s serious, but not as serious as other offences.

48. The Applicant was asked why his driving offences might be considered serious. He told the Tribunal that he regretted his driving offences and that he would drive whilst unlicensed because he didn’t think about it. When it was put to him that his driving record would make it more dangerous for other road users, he did not agree. 

49. Based on his driving record and observations on his driving related offending, the Tribunal concludes that the Applicant has very little insight into the risk to the community that his driving offences, which include drink driving, speeding and disobeying traffic signals may pose.

50. The Respondent submits that the Applicant has frequently misrepresented himself to police through various aliases and sought to evade responsibility for his offending conduct. The Applicant concedes that he has used aliases when dealing with the police and accepts responsibility for doing so.

51. Questioned about the 2009 counselling letter and 2012 formal warning he received, the Applicant says that only now does he realise how serious the warnings were. In particular, he now realises that having his visa cancelled could affect his ability to see his children and his grandchildren and that he may have no one to look after him. He noted that over the years he had many judges tell him that he would be in gaol if he came before the courts again, but it has been the process of having his visa cancelled had made him realise the serious consequences of his offending.  

1. The Applicant contends that he is the provider of for his family including his children, partner and grandchildren. He says that he provides them the money they need for essentials such as food and rent and that in addition he looks after them by buying gifts.

2. Noting he has not provided any evidence relating to his employment history, the Applicant appears to have been gainfully employed since 2018 working on a state government construction project. He testified that he worked night shifts and long hours whilst employed as a contractor on the project, which the Tribunal accepts. He concedes that he “didn’t work for a few years” after he injured his back in 2005. In a written statement dated 22 January 2020, his partner also writes that the Applicant “is the main income supporter for myself and our 3 children [sic]”.I note that the police facts sheet relating to the 2015 destroy or damage property incident states that the Applicant “is unemployed and currently receives about $600 per fortnight for a disability pension”. The Applicant told the Tribunal that whilst he was in Tonga during 2016, he required his adult daughter to send him money in order to buy medication. The Tribunal finds that the Applicant has worked on occasion but also spent considerable periods on disability support pension.  That being the case it is unclear how much financial support he has been able to provide for his family over time. 

3. The Applicant travelled to Tonga between 21 November 2016 and 26 April 2017. Whilst he was in Tonga his Australian visa expired and he was required to apply for another, which was granted. The Applicant contends that it is difficult to understand why he was granted a visa in 2017, only to have it cancelled in 2019. He states that his record since 2000 has “only” consisted of driving offences and the destroy property conviction. Whilst the Tribunal does not accept the Applicant’s account of his post-2000 offending record, it is accepted that his offending since being granted the visa whilst overseas in 2017 has consisted exclusively of driving related offences.

4. A number of letters of support were provided to the Tribunal and the Applicant’s youngest daughter, Ms T, provided evidence. 

5. The Applicant’s partner, Ms Madden, writes that the Applicant will have nowhere to live if he returns to Tonga. She says that the Applicant has five children and seven grandchildren.

6. Ms T noted that her father is diabetic and his medication would not be available in Tonga. She told the Tribunal that if the Applicant were to be removed, it would be particularly difficult for her younger brother who is very close to the Applicant. She writes that her father has changed and that he is a good man. 

7. A letter from the Applicant’s son in law notes that removing the Applicant will damage his family.

8. His grandson acknowledges that his grandfather has made “past mistakes” but that they were “in the past”. 

9. His adult daughter Ms V was the victim of the Applicant’s offending in 1998 when he was convicted of assault occasioning actual bodily harm. She writes that the Applicant has contributed greatly to her family:

   I in the past had not have the best relationship with My dad dues to certain circumstances and as a result ended with a court case against my father, but My dad… is not the same person now as he was back then and I have since forgiven my father. I personally can testify to the person he is today, and I can assure you he has changed. My Dad has become a supportive and loving father …

   (errors in original)

10. His second adult daughter, Ms L, writes that she is proud of her father and notes that his diabetes would be of concern to her should the Applicant be returned to Tonga.

11. The Applicant’s other son in law writes that the Applicant is very supportive of him and his wife and that he can turn to him when he needs help.

12. A letter from the Applicant’s general practitioner, Dr Peiris, confirms that the Applicant has been diagnosed with type 2 diabetes, fatty liver, diabetic retinopathy, fatty liver, essential hypertension and high cholesterol.

13. The Applicant stated that he was involved in community work producing food hampers together for families that don’t have enough to eat. He says this is performed on Sundays, but there is no evidence before the Tribunal indicating the extent of his service or level of commitment.

14. The Applicant told the Tribunal that he also runs a “kava club” where attendees drink kava and he teaches young members of the Tongan community how to stay out of trouble. Pressed for details, the Applicant told the Tribunal that he advises young people to avoid driving the way he did because there is now a much higher chance of getting caught by the police.

    CONSIDERATION

    Primary Consideration A: Protection of the Australian community

15. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1(2) of the Direction further provides that decision-makers should also give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct to date

16. The Applicant has a substantial criminal history, mostly centred on his driving record but punctuated by rare but damaging acts of violence in a domestic setting. The Applicant has been fortunate in so far as his driving offences have not resulted in injury or death. In Safar and Minister for Immigration and Border Protection [2015] AATA 503, Member Webb stated at [28] and [29]:

    Even though each of Mr Safar’s offences may not be within the meaning of “serious offence” under 10.5.2 of the Instructions, the pattern of behaviour and the number and kinds of his offences raise serious concerns. To my mind driving a motor vehicle while under the influence of alcohol is a serious matter. I would say the same about driving a motor vehicle at high speed while holding a provisional licence, driving at 112 km per hour in a 60 km per hour zone for example. One only has to consider the heavy road toll as reported in the media to understand the significant risk such behaviour poses to members of the Australian community. In this regard, I respectfully agree with what the Tribunal said in Re Wang and Minister for Immigration and Border Protection at [7] – laws to protect users of the road “go to the essential safety of the community”.

    Furthermore, Mr Safar’s offending behaviour has continued contrary to a good behaviour bond and, more recently, in the course of these proceedings. This, too, weighs against an assessment of “good character” for present purposes.

    (emphasis added)

17. Despite repeated warnings in the form of fines, license disqualification or suspension, community service orders and two separate warnings that his offending may lead to cancellation of his visa, he has continued to offend regularly.

18. The Applicant’s 2015 destroy or damage property offence occurred in a domestic setting when his partner and son, who is a minor, were present. The assault on his daughter, which whilst it occurred many years ago in 1998, was an attack on a child who was in his care. The Direction states that violent crimes against children are to be taken very seriously.

19. I consider that the nature and seriousness of the Applicant’s conduct weighs in favour of cancelling the Applicant’s visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

20. The Applicant has expressed remorse for his offending but there is no evidence before the Tribunal that he has anything other than a superficial insight into the impact of his offending which he says he regrets because it was wrong. He has sought to downplay the seriousness of his offending by comparing his record to the hypothetical crimes of other people. 

21. Whilst the Applicant has indicated a preparedness to seek anger management or “driving courses” to help manage his behaviour. However, he has not done so to date and has provided no indication that he plans to unless required in order to avoid his visa being cancelled.

22. His driving history has continued on a similar trajectory since he was able to begin driving once again in December 2017. By August 2019 his license had been suspended three times.

    Conclusion as to the protection of the Australian community

23. The Applicant has a long history of offending extending over a total period of 29 years. In the past, even after a length of time in which he has not been charged or convicted of an offence, he has again re-offended. There have been no attempts at rehabilitation.

24. The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Given the serious nature of the harm that flows from the offences committed by the Applicant, I consider that a medium risk of further harm of a similar nature is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of cancelling the Applicant’s visa. 

    Primary Consideration B: Best interests of minor children

25. Paragraph 9.2 of the Direction compels a decision-maker to make a determination about whether visa cancellation is, or is not, in the best interests of a child. Paragraphs 9.2(2) and 9.2(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 to cancel the Applicant’s visa was 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.

26. The Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:

    (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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and            

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.           

27. As previously mentioned, the Applicant has five children. His two adult daughters live in interstate. He lives with his other three children – a daughter aged 18 and two sons aged 16 and 13.

28. The Applicant contends that he plays a “big part” in their welfare and provides for them financially. He states that his children would not be able to cope with his absence.

29. At hearing, the Respondent drew the Tribunal’s attention to the destroy or damage property offence in 2015, noting that if the Applicant were to offend in a similar manner in the presence of either of his minor children, it would have a negative impact on them.

30. The evidence before the Tribunal does indicate that he has a particularly strong bond with his son. This was confirmed by the Applicant’s 18 year old daughter who said her brother would be “crushed” if the Applicant is deported.

31. There is no information before the Tribunal which indicates the specific impact that the Applicant’s removal might have on his 16 year old son.

32. I note that the Applicant’s partner, who reported the 2015 incident, has forgiven him and writes that she called the police “out of anger but didn’t think it would end up at court…”.

33. The Applicant states that he has 7 grandchildren who reside close to his house who he sees “every day”. The Respondent identified that one of the grandchildren has turned 18 which the Tribunal accepts. The Tribunal does not doubt his involvement in the lives of his grandchildren and that he sees them regularly but notes that there is no evidence to indicate they are dependent on him or do not have a primary carer.

34. The Applicant informed the Tribunal that he provides care for his brother’s adult son, who is blind as a consequence of diabetes. This extends to supporting him and his three children who he takes out. Noting the scarcity of detail, the Tribunal accepts this and it weighs in the Applicant’s favour.

35. The Tribunal accepts that not exercising the discretion to cancel the Applicant’s visa would be in the best interests of the Applicant’s children and to a lesser extent that of his nieces and nephews. For these reasons, Primary Consideration B weighs significantly in the Applicant’s favour.

    Primary Consideration C – The expectations of the Australian community

    The relevant paragraphs in the Direction

36. In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 9.3(1) of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to any overarching principles and guidance provided by the Direction. Paragraph 9.3(1) of the Direction directs a decision-maker to endorse visa cancellation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not continue to hold a visa.

    The evolution of the Australian community’s ‘expectations’

37. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.

38. In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, Deputy President Block of this Tribunal said that one must look to the expectations of’ ‘… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.

39. In ETWK and Minister for Immigration and Border Protection [2017] AATA 228, Deputy President Forgie considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of Direction No 65. The learned Deputy President at [102] considered that paragraph 13.1 guided a decision-maker to:

    …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.

40. The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, particularly at [76]:

    In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.

41. The learned Mortimer J also opined at [76] and [77] that the last two sentences of paragraph 13.3 of the Direction:

    … [are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    …

    I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…

42. In Afu v Minister for Home Affairs [2018] FCA 1311 Bromwich J said at [85]:

    The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.

43. In FYBR v Minister for Home Affairs[2019] FCA 500, Perry J observed at [42]:

    It follows, in line with the authorities, that cl 11.3 of Direction 65[1] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...

    (footnote added)

    [1] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the cancellation of an Applicant’s visa. In those latter circumstances, the relevant paragraph is 9.3(1) [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per the superseded Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 9.3(1) for cancellation matters.

44. FYBR was appealed to the Full Court of Federal Court of Australia. On 25 October 2019, the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.

45. Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:

    (a)the ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community: see Afu at [85];

    (b)the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations: see FYBR  at [42];

    (c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” of those statements, if made: see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [74] citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348; and

    (d)in assessing the weight attributable to Primary Consideration C, decision-makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this primary consideration is a matter for the decision-maker: see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] and [105].

1. The Australian community expects non-citizens to obey Australian laws while in Australia. As noted, the Applicant has an extensive and long history of breaking the law. 

2. In assessing all the relevant evidence against the requirements of the Direction, I find that the expectations of the Australian community weigh in favour of cancelling the Applicant’s visa. 

   OTHER CONSIDERATIONS

3. In deciding whether to discretion should be exercised to the cancel the Applicant’s visa, I must take into account the other considerations listed in the Direction, where relevant. These considerations, as set out in paragraph 10(1) of the Direction, and include, but are not limited to:

   (a)international non-refoulement obligations;

   (b)strength, nature and duration of ties;

   (c)impact on Australian business interests;

   (d)impact on victims;

   (e)extent of impediments if removed.

   Other Consideration A: International non-refoulement obligations

4. Paragraph 10.1 of the Direction notes that a  non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

5. No evidence or submissions were advanced that were relevant to this other consideration. Accordingly, this other consideration is afforded no weight.

   Other Consideration B: Strength, nature and duration of ties

6. Paragraph 10.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia.

7. The Applicant arrived in Australia aged 20 and is now 55 years old. The entirety of his extended family resides in Australia, as do his five children. He is in a twenty year relationship with an Australian citizen. 

8. The Direction states that I must also consider that the Applicant began offending soon after he arrived in Australia. His criminal offending has continued for some 29 years. Whilst the Applicant stated he performs community service, I do not place any weight on this given the lack of evidence and questionable community benefit of the “kava club”.

9. Having regard for all the evidence presented I find that the Applicant does have close and significant ties to the Australian community and the effect of cancelling his visa would be very negative for his Australian citizen partner and his five children, particularly the three youngest, two of whom are minors.  There would be lesser impact on his two older daughters, four siblings and their families.

   Other Consideration C: Impact on Australian business interests

10. Paragraph 10.3 of the Direction stipulates that this consideration should only generally be given weight where visa cancellation would significantly compromise the delivery of a major project, or the delivery of an important service in Australia. There is no evidence from either party that this was the case in the Applicant’s particular circumstances, and therefore, this consideration is afforded no weight.

    Other Consideration D: Impact on victims

11. Paragraph 10.4 of the Direction provides that decision-makers should take into account the impact on victims where information is available.

12. In this case, the primary identifiable victims of the Applicant’s offending have both provided statements in support of his visa not being cancelled. As mentioned, Ms Madden states that she called the police out of anger, and was not prepared for the consequences to flow through to court and conviction. Importantly for the Tribunal, his adult daughter, who the Applicant assaulted when she was a minor, acknowledges that she has had a difficult relationship with the Applicant but now is strongly supportive of him staying in Australia.

13. Consequently, this factor weighs marginally against the discretion being exercised to cancel the visa.  

    Other Consideration E: Extent of impediments if removed

14. Paragraph 10.5 of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is removed to Tonga.

15. Whilst the Applicant has lived in Australia for most of his life, he spent over five months in Tonga in 2016-2017. He contends that he is reliant on medication to treat his diabetes and blood pressure condition which the Tribunal accepts.  However, the Applicant acknowledged that he was able to procure the required medication locally whilst he was in Tonga.

16. Country information provided to the Tribunal by the Respondent indicates that the Tongan government provides universal health care including access to medication which is free if dispensed at health centres. I acknowledge, however, that the health care system is limited by challenges including lack of staff and equipment and rationed drugs and medical supplies.

17. It is unlikely that the Applicant would be able to access the same level of health care in Tonga as here in Australia but he would be able to access services similar to other citizens of Tonga.

18. The Tribunal is concerned that the Applicant lacks an extended family or an established support network in Tonga. The Applicant contends that he would be homeless if returned. With his extended family residing permanently in Australia, I accept that this may be a possibility until he can make alternative arrangements. However, I note that he was able to live in Tonga for an extended period of five months relatively recently and confirmed that most of that time was spent staying with friends and acquaintances.  I note also that whilst the Applicant contends that he accessed accommodation through friends from Australia who came to visit him whilst he was in Tonga, it is open for the Applicant to re-establish contact with these individuals. 

19. The Tribunal finds that this consideration weighs slightly in favour of not exercising the discretion to cancel.

    CONCLUSION

20. The Applicant’s serious offending precludes him from passing the character test in s 501(6) of the Act.

21. I have considered the specific circumstances relating to the Applicant as part of my consideration whether to exercise the discretion to cancel the Applicant’s visa. I am now required to weigh up those considerations.

22. The primary considerations relating to the protection of the Australian community and expectations of the Australian community are strongly in favour of cancellation. The Applicant is guilty of repeatedly offending over an extended period of time and in doing so he has betrayed the trust of the Australian community. He has been warned twice that his visa may be cancelled and yet has continued to offend. It is a privilege for non-citizens to be able to live in Australia. The Australian community has an expectation that this privilege will not be abused.

23. The Applicant has two minor children who would benefit from having access to both parents. There is no doubt that his two minor sons would be emotionally impacted by their father being deported. It would be particularly difficult for them as they are of an age where they have formed a connection with their father and are aware of the circumstances of his return to Tonga.

24. There is no doubt that his partner would be also be distressed by the Applicant being deported. To a lesser extent, the rest of his family would also be impacted. These factors weigh in the Applicant’s favour and carry significant weight with the Tribunal.

25. The other considerations relating to the strength, nature and duration of the Applicant’s ties to Australia and the extent of impediments if removed to Tonga also weigh in the Applicant’s favour, but moderately so.  The impact on the victims of his offending carries some weight in favour of not exercising the discretion to cancel. 

26. This is a difficult decision but the Tribunal cannot be confident that the Applicant will not reoffend. This is particularly the case when the Applicant was notified on two previous occasions that he may lose his right to stay in Australia and has continued to offend.  Further, he has not engaged in any measures which demonstrate a sincere intention or desire to change his behaviour and consistently abide by the law. 

27. The Australian community will face an unacceptable risk of further harm if the Applicant remains in Australia. It follows from the application of the guiding principles in paragraph 6.3 of the Direction that I am satisfied that the exercise of discretion to cancel the Applicant’s visa is the preferable decision. 

    DECISION

28. For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 17 December 2019, to exercise the discretion to cancel the Applicant’s Class BB, Subclass 155 Five Year Resident Return visa pursuant to subsection 501(2) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 124 (one hundred and twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..............................[sgd]..........................................

Associate

Dated: 24 March 2020

Date(s) of hearing:	10 & 11 March 2020
Advocate for the Applicant:	Ms D Madden
Solicitors for the Respondent:	MinterEllison