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

[2020] AATA 3

Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3 (3 January 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6534

Re:Semi Bulivesi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:3 January 2020

Place:Sydney

The Reviewable Decision dated 10 October 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

............................[SGD]............................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation – where Applicant does not pass the character test – serial domestic violence offender – whether there is another reason to revoke the cancellation of the Applicant’s visa – application of Ministerial Direction 79 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

Minister for Home Affairs v Buadromo  [2018] FCAFC 151

PNLB v Minister for Immigration and Border Protection [2018] AATA 162

Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

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 a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Linda Kirk

3 January 2020

1. Mr Semi Bulivesi (‘the Applicant’), a citizen of Fiji, was born in 1977.[1] He came to Australia in July 2008 when he was aged 31 years.[2] Prior to its cancellation, the Applicant held a Partner (Subclass 801) (Class BS) visa.[3]

   [1] Exhibit R1, G10, 42.

   [2] Exhibit R1, G28, 106.

   [3] Exhibit R1, G28, 106.

2. On 14 February 2018, the Applicant was convicted in a Local Court of Common assault (DV) – T2, Contravene prohibition/restriction in AVO (domestic) and Assault occasioning actual bodily harm (DV) – T2 against his wife and sentenced to 18 months imprisonment.[4]

   [4] Exhibit R1, G6, 32.

3. On 10 September 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date, the Applicant was serving a sentence of full-time imprisonment.

   [5] Exhibit R1, G30, 109.

4. On 5 October 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[6]

   [6] Exhibit R1, G9, 36-40.

5. On 10 October 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[7]

   [7] Exhibit R1, G3, 11.

6. On 11 October 2019, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of this decision.[8]

   [8] Exhibit R1, G1.

7. The matter was heard by the Tribunal at a hearing in Sydney on 5 and 11 December 2019. The Applicant attended the hearing in person and was unrepresented.  He was assisted by an interpreter in the Fijian language.

8. The following persons gave oral evidence at the hearing:

   ·the Applicant;

   ·Fulori Bulivesi;

   ·Inoke Dominakibau;

   ·Isikeli Seru Lagivala;

   ·Sakiusa Kama Lagivala; and

   ·Pauliasi Ro Bolamatua T. Manumanunitoga.

9. The material before the Tribunal consists of:

   ·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 22 November 2019;

   ·G documents (G1 to G31, pages 1 – 152) – Exhibit R1;

   ·Tender Bundle (TB1 to TB6, pages 1 – 101) – Exhibit R2;

   ·Supplementary summons material (pages 1 – 5) – Exhibit R3;

   ·NSW Police Facts Sheet (pages 1 – 4) – Exhibit R4;

   ·Statement of Sakiusa Kama Lagivala dated 14 November 2019  – Exhibit A1;

   ·Statement of Isikeli Seru Lagivala, undated – Exhibit A2;

   ·Statement of Inoke Dominakibau, undated – Exhibit A3;

   ·Statement of Fulori Bulivesi dated 28 October 2019 with attachments – Exhibit A4;

   ·Statement of Pauliasi Ro Bolamatua T. Manumanunitoga – (Exhibit A5).

10. The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.

    LEGISLATION

11. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    …; and

    (b)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.

12. Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).

13. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).

14. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under s 501(3A). Subsection 501CA(4) provides:

    4The 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.

15. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 79

16. When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).

17. The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:

    1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

18. The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter provide the framework within which the considerations set out in Parts A, B and C of the Direction are set.

19. The first paragraph of the General Guidance provides:

    1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

20. The following Principles are set out in paragraph 6.3:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

    4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    6Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.

    7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

21. Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:

    1Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a)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; or

    (b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

22. In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).

23. In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

    … Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.

24. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:

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

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

    (c)expectations of the Australian community.

25. The Other considerations are:

    (a)       international non-refoulement obligations;

    (b)       strength, nature and duration of ties [to Australia];

    (c)       impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

26. Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.’ Paragraphs 8(4) and (5) provide that Primary considerations should be given greater weight than Other considerations, and one or more Primary considerations may outweigh other Primary considerations.

    ISSUES FOR DETERMINATION

27. Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

28. There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[9] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):

    ... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[10]

    [9] [2018] FCAFC 151.

    [10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

29. The issues for determination are whether:

    (a)the Applicant passes the character test; and

    (b)there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

30. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Years in Fiji

31. The Applicant attended school in Fiji until year 10 and classes were in English.  He had a good relationship with his parents and two brothers.[11]

    [11]Transcript p79.

32. He left school at the age of 16 years and undertook vocational training in welding fabrication for two years.[12] After completing this training he worked in a bus company doing fabrication for four years.  Following this he went back to his family’s village and did farming until he came to Australia.[13]

    [12] Transcript p80.

    [13] Transcript p81.

    Arrival in Australia and family members

33. The Applicant arrived in Australia in July 2008[14] on a tourist visa at the age of 31 years.[15] 

    [14] Exhibit R1, G28, 106.

    [15] Transcript p11.

34. He met his wife, Fulori Bulivesi, in Sydney in 2010 and they started living together in the same year.  They moved to Victoria that year and in 2013 they were married. He and his wife have three biological children together, ‘S’ born in 2012 (aged seven), ‘U’ born in 2013 (aged six), ‘I’ born in 2015 (aged four).[16]  The Applicant also has a step-daughter, ‘L’ born in 2008 (aged 11) who is his wife’s child from another relationship.[17]

    [16] Exhibit R1, G10, 45.

    [17] Exhibit R1, G10, 45.

35. The Applicant has two other daughters, ‘A’ born in 2005 (aged 14) and ‘E’ born in 2006 (aged 13) both of whom reside in Fiji and live with his older brother.[18] 

    [18] Exhibit R1, G10, 47.

36. The Applicant was granted a Partner (Residence) (Class BS) visa on 18 April 2017[19]  Prior to the grant of this visa, the Applicant was formally notified by the Department that because of his criminal history in Fiji he may not pass the character test.[20]

    [19] Exhibit R1, G30, 109.

    [20] Exhibit R1, G22, 88-89.

    Work history

37. The Applicant worked as a farm worker in Victoria from 2008 to 2013. In 2013 he commenced work with New South Wales Rail as a welder and then with Sydney Water as a security guard.  In 2017, he commenced working full-time for State Rail in Victoria.[21]  When he was working in Victoria he would travel there for work and his family remained in Sydney. He worked a pattern of three weeks on and one week off.[22]

    [21] Transcript p85.

    [22] Transcript p86.

    Criminal History

38. A Nationally Coordinated Criminal History Check dated 7 March 2019 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. [23] In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.

    [23] Exhibit R1, G5, 24-26.

Court date	Offence	Penalty
04/02/2014 (Wentworth Local Court)	Drive   motor    vehicle  during disqualification period – 1st off	Bond s 10: 2 years
23/10/2014 (Parramatta Local Court)	Common assault (DV)	Bond s 10: 12 months
12/04/2016 (Parramatta Local Court)	Stalk/intimidate intend  fear physical etc. harm (domestic) Common assault	Bond  s  9:  18  months  supv  NSW  prob  service    for counselling,  educational   development   or drug and alcohol rehabilitation Bond  s  9:  18  months  supv  NSW  prob service     for counselling, educational   development   or drug and alcohol rehabilitation
05/04/2017 (Fairfield Local Court)	Contravene prohibition/restriction   in  AVO (domestic)	Bond  s  9:  18  months  supv  NSW prob   service   obey  all  reasonable directions for counselling,  educational   development   or drug and alcohol rehabilitation
21/11/2017 (Robinvale Magistrates Court)	Indecent act with child under 16	With conviction, fined $2,000
14/02/2018 (Fairfield Local Court)	Common assault (DV)-T2	Imprisonment: 12 months commencing 14/02/2018  concluding  13/02/2019  non parole period   with   conditions:  9 months commencing   14/02/2018  concluding 13/11/2018, release subj to supervision Severity   appeal   lodged   –   order  confirmed   by   Parramatta District Court on 26/03/2018
	Contravene prohibition/restriction   in  AVO (domestic)	Imprisonment: 18 months commencing 14/02/2018 concluding  13/08/2019  non parole period  with  conditions:  12 months commencing   14/02/2018 concluding 13/02/2019, release subj to supervision Severity   appeal   lodged   –   order confirmed   by   Parramatta District Court on 26/03/2018
	Assault occasioning actual bodily harm (DV)-T2	Imprisonment: 18 months commencing 14/02/2018 concluding  13/08/2019  non-parole period  with  conditions:  12 months commencing   14/02/2018 concluding 13/02/2019, release subj to supervision Severity   appeal   lodged   –   order confirmed   by   Parramatta District Court on 26/03/2018
	Contravene prohibition/restriction   in  AVO (domestic)	(call  up)  imprisonment:  4 months commencing    14/02/2018 concluding 13/06/2018 Severity appeal lodged – order confirmed by Parramatta District Court on 26/03/2018

Early offending

1. In September 2013, the Applicant was pulled over by the police in New South Wales and found to be driving without a license. In February 2014, he was convicted in the Wentworth Local Court of Drive motor vehicle during disqualification period and sentenced to a s 10 good behavior bond for two years.

   Domestic violence offences

1. In October 2014, the Applicant was convicted in the Parramatta Local Court of Common assault (domestic violence) against his wife.  This arose from an incident in June 2014 when the Applicant was having a drink with his wife at a hotel and he became jealous of her speaking to a man on Facebook.[24]  They began to argue and she went to leave the hotel. He grabbed hold of her bag and when she pulled it away from him he became aggressive and started to yell and swear at her.  She yelled back and then he punched her in the mouth.  She was stunned and fell to the ground.  When she was on the ground he continued to yell at her and told her ‘don’t come home tonight you can sleep outside’.[25]  Following this, an Apprehended Violence Order (AVO) was granted. The Applicant was found guilty of the offence and given a good behaviour bond for 12 months.

   [24] Exhibit R2, TB1, 14.

   [25] Exhibit R2, TB1, 14.

2. In April 2016, the Applicant was convicted in the Parramatta Local Court of the offences Stalk/intimidate intend fear physical harm and Common assault. The Police Fact Sheet records that these offences occurred in February 2016 when the Applicant became angry at his wife over his shirt not being washed.  He spat on her face and punched her with a closed fist on the left side of her face. She felt immediate pain to her jaw and the left side of her face. His wife got their four children and left the house.  The Applicant phoned his wife and asked her to bring back the car keys and his children. She said she would not do so and he told her that if she returned to the house he was ‘going to rip her throat out’.[26] He received a s. 9 bond with supervision by the NSW probation service for counselling, educational development or drug and alcohol rehabilitation.[27] An AVO was also granted against the Applicant following this incident for a period of 12 months prohibiting him from threatening or assaulting his wife or entering premises where she is residing or working.[28]

   [26] Exhibit R2, TB4, 29-31; Transcript p22-25.

   [27] Exhibit R2, TB4, 37.

   [28] Exhibit R2, TB4, 39.

3. The Applicant was asked about this offence at the hearing.  He denied punching his wife in the face and said that he slapped her with an open hand, and denied threatening her over the phone. He agreed that he did plead guilty to the police facts. He claimed he was sober at the time and going to work.[29]  He said he apologised to his wife and told her that he would not do it again.[30] Following this assault, he moved out of the house and lived with a friend for six months. He had limited contact with his children during this time.[31]

   [29] Transcript p22.

   [30] Transcript p25.

   [31] Transcript p25.

4. The Applicant was asked whether he went to any relationship counselling following this offence.  He said he went to drug and alcohol counselling.[32]  He was enrolled in a men and family relationship program at Catholic Care in May 2016 but he did not complete the program.[33]  He told the Tribunal that he completed about two and a half months of the three-month program.  He did not complete it because he had difficulty with speaking in English and felt embarrassed.[34]

   [32] Transcript p25.

   [33] Exhibit R2, TB4, 42.

   [34] Transcript p26-27.

5. In November 2016, the Applicant applied for a variation of the AVO so he could live with his wife.  The variation was granted on condition that he not approach her if he had been drinking or taking drugs.  The AVO was extended for a further two year period.[35]

   [35] Transcript p28; Exhibit R2, TB4, 43-46.

6. In November 2016, the Applicant and his wife were drinking at home and got into a verbal argument about their living arrangements.[36]  The next morning the Applicant left for work and left his wife a letter which read ‘Pack your things n fuck off to your mother I don’t wanna see your face again.’  When he returned home from work the Applicant was joined by a friend and they started drinking.[37]  His wife returned home with the four children about 5pm and she and the Applicant began to argue again.  The Applicant put his son into the car and started to drive out the driveway.  His wife tried to grab the handle of the car door.   She then called 000.  While she was on the phone the Applicant returned home.  He walked towards her and attempted to grab the phone.  Police attended the premises and the Applicant’s wife told them she was ‘becoming increasingly fearful of the accused due to his escalating behavior and violence.’[38]

   [36] Exhibit R4, p2; Exhibit R2, TB1, 7-8; Transcript p30.

   [37] Transcript p30.

   [38] Exhibit R2, TB1, 8.

7. The Applicant told the Tribunal that he knew he had breached the AVO and he did not want to get caught and this is why he tried to stop her from calling the police and grabbed the phone from her.  He denied that he was becoming more physically violent towards her but agreed he did verbally abuse her.[39]  The Applicant said that when he would drink his wife would bring up things that would make him angry.[40]

   [39] Transcript p32-33.

   [40] Transcript p35.

8. The Applicant told the Tribunal that following this incident he stopped drinking alcohol for eight months and started a counselling course in April 2017.[41]  At this time he was living in Victoria and working in the railways.[42]  He was returning to Sydney once a month to visit his wife and children.[43]

   [41] Exhibit R2, TB4, 49ff; Transcript p33-34.

   [42] Transcript p38-40.

   [43] Transcript p40.

9. In July 2017, the Applicant was at home and had an altercation with a man.  He agreed that he was intoxicated at the time and that he did drink on some occasions during the eight month period of his abstinence from alcohol.[44]

   [44] Exhibit R2, TB1, 5; Transcript p41-42.

10. On 14 February 2018, the Applicant was convicted of Common assault (domestic violence), Contravening an AVO (domestic) and Assault occasioning actual bodily harm (domestic violence) against his wife in December 2017. He was also called up for a previous Contravene AVO offence for which he had been given a s 9 good behaviour bond.[45]

    [45] Exhibit R1, G5, 25.

11. According to the Police Fact Sheet, the incident occurred on 23 December 2017 after the Applicant and his wife returned home after a wedding.[46] Prior to the wedding they had been drinking alcohol all day.  The Applicant approached his wife who was laying on the lounge.  He pulled her hair slowly and hard.  She asked him to stop and then he began punching her on the left side of her face and temple area before pulling her by her hair onto the floor.  He continued to punch her and she yelled out to her sister for help.  Her sister ran and told one of the Applicant’s uncles who was outside and he came into the house and pulled the Applicant off his wife.  His wife had blood coming from one of her teeth after the assault.  She then went into the bedroom with her sister and children and went to sleep.[47]

    [46] Exhibit R3.

    [47] Exhibit R3, 3.

12. Later in the morning the Applicant demanded the Applicant get him more beer.  She said it was not a good idea because he had been drinking alcohol for two days.  He raised his voice and began swearing at her until she agreed to take him to get alcohol.  While she was driving, the Applicant began swearing at his wife and pulled the steering wheel down violently causing the vehicle to swerve.  She asked him to stop so he did not cause an accident and he punched her to the left side of her cheek causing her top and bottom inner lip to split.[48]  He yelled for her to pull over and again pulled the steering wheel down causing the vehicle to travel across three lanes.  He told her to ‘Get out’ of the car and she took the keys and went into a bakery.  He followed her into the bakery and demanded she given him the keys and slapped her on the top of her head. She refused to give him the keys because he was intoxicated.  She asked the staff at the bakery to call the police.  The police attended and arrested the Applicant.[49]

    [48] Exhibit R3, 3-4.

    [49] Exhibit R3, 4.

13. The Applicant was asked about these offences at the hearing. He told the Tribunal that he was highly intoxicated and does not remember anything that happened during the night as he had ‘blacked out’.[50]  When he was told the next morning he had assaulted his wife he felt ‘embarrassed and sad and sorry for what [he] did’ and he apologised to his wife.[51]  He denied that he punched his wife in the car, but agreed that he slapped her when they were in the bakery.[52]

    [50] Transcript p59.

    [51] Transcript p58-59.

    [52] Transcript p52-53.

14. The sentencing judge, Magistrate Swan of the Local Court of Fairfield, described the Applicant as a ‘serial domestic violence offender’ and placed weight on his previous domestic violence offences in considering the appropriate sentence.[53]  He was sentenced to 18 months’ imprisonment for each of the offences and four months’ imprisonment for the Contravene AVO which was called up.

    [53] Exhibit R1, G6, 30.

15. The Applicant appealed the severity of the sentences imposed.  Judge Colefax SC of the District of New South Wales dismissed the appeals. He was satisfied a period of full-time imprisonment was appropriate for each offence.[54]  He also observed that the circumstances of the assault were aggravated by the fact that the Applicant, whilst ‘almost blind drunk’, wanted to use the family motor vehicle and, when his wife intervened to prevent him from committing that serious offence, she received ‘the bashing that she did’.[55]

    [54] Exhibit R1, G7, 33.

    [55] Exhibit R1, G7, 34.

    Indecent act with a child

16. On 21 November 2017, the Applicant was convicted in the Magistrates Court of Victoria at Robinvale of an Indecent act with a child under 16 that occurred in Victoria in December 2014, for which he was fined $2,000. This was a registerable offence pursuant to the Sex Offender Registration Act 2004 (Vic) and he was ordered to report to Victoria Police for eight years until 2022.[56] 

    [56] Exhibit R1, G25, 95; Exhibit R2, TB5, 99, TB4, 95.

17. The informant’s statement states that the victim was the 12 year old second cousin of the Applicant’s wife.[57] The Applicant approached the victim after she had changed his child’s nappy and he kissed her and put his tongue in her mouth.[58]  The Applicant said he had only tried to give the complainant a hug and that he had no inappropriate intentions at the time.[59]   He also claims that the victim’s mother did not communicate with him after the offence and he had a difficult relationship with her prior to the incident.[60]  The Applicant was asked about this offence at the hearing.  He denied that he kissed the victim on the mouth or that he used his tongue.[61] He pleaded guilty to the offence on the advice of Legal Aid so that he did not have to go to gaol.[62]

    [57] Exhibit R1, G8, 35.

    [58] Exhibit R1, G8, 35.

    [59] Exhibit R1, G26, 96-99.

    [60] Exhibit R1, G26, 98.

    [61] Transcript p43-44.

    [62] Transcript p45.

    Remorse and responsibility for offending

18. In a statement provided to the Minister dated 2 October 2018, the Applicant wrote:

    I would like to tell you that what happened with me is only a misunderstanding between me and my partner (wife), and this misunderstanding was influenced by alcohol intoxication.  There was no serious criminal conduct neither there was any planning or pre-meditating in regards to my offences.  Also there was no use of any weapons of any type what so ever. Just a little push and shove between me and my partner and was influenced by alcohol intoxication.[63]

    …

    … my conduct was influenced by alcohol intoxication and was sudden and not planned and on the three occasions between me and my partner, my partner was abusive and very angry and attacked me first and I pushed her away to try to calm her down which resulted in her hair being pulled and there was no damage to my partner as I never caused any black eyes or anything like that it was mainly a little damage to my partner’s lips from the pushing and shoving.[64]

    [63] Exhibit R1, G11, 53.

    [64] Exhibit R1, G11, 55.

19. At the hearing, the Applicant told the Tribunal that he does not stand by his statement that there was ‘no serious conduct’ on his part nor that there was ‘no damage’ to his partner. He was helped with his statement by his cell mate in gaol who wrote it down and typed it up for him.[65]  He accepts that the harm caused to his wife was his fault.[66] He is aware of the impact on her and realises that ‘[i]t will affect her for a very long time.’[67]

    [65] Transcript p71-73.

    [66] Transcript p64.

    [67] Transcript p67.

    Risk of re-offending

20. In a Pre-sentence report dated 13 February 2018 prepared by Community Corrections, Corrective Services, NSW reported:

    [The Applicant] claimed that due to his level of intoxication, he was unable to remember his commission of his offences.  He did however accept personal responsibility for his actions and displayed some insight into the seriousness of his offences. He verbalised a willingness to address his offending behaviour if placed on community supervision.

    According to the Level of Service Inventory – Revised actuarial risk / needs assessment tool, the offender is assessed as a low-medium risk of re-offending.

    Rehabilitation and courses

21. When he was in gaol, the Applicant completed a program in relation to the impact of his offending.  He told the Tribunal that he has learned that when he leaves gaol he has to ‘reinvent himself’ and ‘change to be a better person instead of doing the same thing all the time. No alcohol, no drinking, no violence.’[68]

    [68] Transcript p66.

22. The Applicant told the Tribunal:

    I have learnt from my lesson and I won’t do it again.  I have seen what happened, I been to jail, I have lost everything.  I am a new man now and I want to be a good dad and I won’t drink anymore.[69]

    [69] Transcript p112.

23. In gaol the Applicant was visited by Reverend Joe Rika on a fortnightly basis who taught him Biblical principles of righteous living.  According to the Reverend, the Applicant ‘has received this teaching wholeheartedly’ and he has ‘noticed a change in his behaviour and attitude’.  The Applicant ‘has verbalised his remorse for the crime and wrong doing in his life’.[70]

    [70] Exhibit R1, G18, 72.

24. The Applicant told the Tribunal that he has not had any alcohol since he has been in gaol and immigration detention and he does not plan to resume drinking if he is released.[71] The Applicant did not attend Alcoholics Anonymous and did not know it was available in immigration detention.[72]  He said that he will complete a drug and alcohol course and also undertake anger management.[73]

    [71] Transcript p112.

    [72] Transcript p68.

    [73] Transcript p113.

25. He completed the following courses in gaol:

    • Compass Assessment Test (Literacy and Numeracy) – 5 March 2018.
    • Employment Pathways Program – 31 July 2018;
    • Certificate II in Kitchen Operations – 7 August 2018;
    • Digital Literacy Skill Set – 31 August 2018;

    Impediments on return to Fiji

26. The Applicant claims that if he is returned to Fiji he will face difficulty in obtaining employment as it is ‘very hard and impossible’ to find jobs in Fiji and he will not be able to support his family and his children in Australia and Fiji.[74]

    [74] Exhibit R1, G10, 50.

    Children

27. The Applicant has six children, four of whom reside in Australia.  These four children live with their mother and attend a local public school.[75]  His son was diagnosed with Global Developmental Delay and Autism Spectrum Disorder in November 2018.[76] He attends a special school locally.[77]  He sees a speech therapist and also a therapist to assist him with walking every two months.  The Applicant’s daughters are doing well at school and play netball and his step daughter plays football.  He speaks to them every day on the phone and by video call.  He also speaks to his daughters in Fiji by video call every day.[78]

    [75] Transcript p144.

    [76]  Exhibit R1, G4, 13.

    [77] Transcript p97, 145.

    [78] Transcript p101-102.

    Relationship with wife

28. The Applicant told the Tribunal that he is still in a married relationship with his wife and they are only separated because he is in immigration detention.[79]  When he is released they will not live together but they will remain married.[80]

    [79] Transcript p102-103; p111.

    [80] Transcript p111.

    Plans for the future

29. The Applicant said that if he leaves immigration detention he will stay with a friend for a few weeks.  He will return to the same job working for New South Wales Rail.[81]  He is confident he will find work as he has all his current tickets and he already has a verbal job offer.[82]  He will live in Sydney and will visit his children every fortnight.  His wife will also bring the children to see him in Sydney some weeks.[83]

    [81] Transcript p109-110.

    [82] Transcript p111.

    [83] Transcript p111.

    Evidence of Applicant’s wife – Ms Fulori Bulivesi

30. The Applicant’s wife provided a written statement in which she stated that she and the Applicant have been a couple for nine years and have four children.  They are currently separated but he is in regular contact with her and the children.[84]

    [84] Exhibit A4.

31. In her oral evidence Ms Bulivesi told the Tribunal that she and the children have been living in rural New South Wales since August 2018.  They stayed with her mother for some months and then they moved to their current address. They have no plans to return to Sydney.[85]  She is currently receiving Centrelink benefits, single parenting and family tax benefit.[86]

    [85] Transcript p145.

    [86] Transcript p144.

32. She told the Tribunal that the children are doing well at school and they are happy at their current address.  Their son is not currently receiving any therapy for his autism although he did have speech therapy when they were living in Sydney.[87]  She confirmed that the Applicant is close to his children and particularly his son.  He stays in regular daily contact with the children via Messenger, video calls, and phone calls.[88]

    [87] Transcript p145.

    [88] Transcript p158.

33. Ms Bulivesi told the Tribunal that her and the Applicant’s marriage ‘has broken down’ permanently and there is no prospect of reconciliation.[89] They separated when the Applicant went to gaol.[90]  She did visit him with their children when he was in gaol and in Villawood.[91] She would not mind him coming to visit the children and she will continue having a relationship with him for this reason.[92]

    [89] Transcript p157.

    [90] Transcript p151.

    [91] Transcript p146.

    [92] Transcript p158.

34. She was asked about a number of the convictions the Applicant received as a consequence of domestic violence offences against her.[93]  She confirmed that during the incident that occurred in February 2016 the children were in their bedroom when the Applicant assaulted her in their lounge room.[94]  She confirmed there was a lot of domestic violence in their relationship and she did not report every incident.[95] 

    [93] Transcript p148ff.

    [94] Transcript p150.

    [95] Transcript p151.

35. Ms Bulivesi told the Tribunal:

    I just kept believing that he was going to change and he just kept telling me that he was.  And I just keep giving him chances after chances, I guess. Mainly was for the kids.[96]

    [96] Transcript p153.

36. She said that she stayed in the relationship to make the children happy and she did not worry about herself and the impact on her own health.[97] The Applicant was never violent towards the children and she does not think that they ever would have witnessed any of the assaults by the Applicant against her, but she believes they would have been scared about the domestic violence occurring in the home.[98]

    [97] Transcript p155.

    [98] Transcript p155-156.

    Evidence of other witnesses

37. Mr Pauliasi Ro Bolamatua T. Manumanunitoga provided a written statement dated 1 November 2019,[99] and gave oral evidence via telephone. He has known the Applicant for 20 years and knew him in Fiji.[100]  It is his understanding that the Applicant went to gaol because he breached a community service order.  The Applicant told him that there was an AVO in favour of his wife because he had assaulted her.[101]  He has visited the Applicant in Villawood but did not visit him in gaol.[102] He stated that the Applicant is a good father and Mr Bolamatua T. Manumanunitoga gave him some phone cards so he could call his wife and children.[103]

    [99] Exhibit A5.

    [100] Transcript p161.

    [101] Transcript p162-165.

    [102] Transcript p165.

    [103] Transcript p166.

1. Mr Sakiusa Lagivala, the Applicant’s youngest brother, provided a written statement dated 14 November 2019,[104] and gave oral evidence via telephone from Suva. He is an electrician and has worked at the electricity authority in Fiji for nine and a half years. He often sees the Applicant’s daughters and he has a very good relationship with them. He supports them financially, particularly for the education and clothing expenses.[105] He met the Applicant’s son when the Applicant and his son visited Fiji in 2017, but he has not met his other children.[106] The Applicant has not told him about the crimes he committed in Australia and he has not asked him the details.[107]

   [104] Exhibit A1.

   [105] Transcript p118-119, 121.

   [106] Transcript p121.

   [107] Transcript p120.

2. Mr Isikeli Seru Lagivala, the Applicant’s older brother, provided an undated written statement,[108] and gave oral evidence via telephone from Suva. He is an engineer for Telecom in Fiji and he has worked there for 20 years.[109]  He told the Tribunal that he and his brothers support his parents financially by sending them money.  He confirmed that the Applicant’s two daughters live with him and his wife. He takes care of them and pays for their daily living expenses including food, books, clothes and their education.[110] They see their mother from time to time.  The Applicant phones to speak to his daughters every weekend.[111] He used to send them money, approximately $200-$300, before he went to gaol and was working.[112]  The Applicant has told him about the domestic violence offences against wife.  He told him that he slapped her and on one occasion he punched her to control her from swearing and quarrelling, but he is really sorry and regrets what he did and wants to change.[113]

   [108] Exhibit A2.

   [109] Transcript p124.

   [110] Transcript p126.

   [111] Transcript p125.

   [112] Transcript p126-127.

   [113] Transcript p128-132.

3. Mr Inoke Dominakibau provided an undated written statement,[114] and gave oral evidence via telephone. He told the Tribunal he has known the Applicant for many years. They are work colleagues and they both worked on the railway. The Applicant lived with him and his family for three months in 2013. He is aware that the Applicant was involved in two or three assaults against his wife.[115]  He visited him in gaol and also has visited him in Villawood.[116]  He said the Applicant can come and live with him if he is released. They are looking for people to work at Anric Rail in Goulburn which is where he is currently working.[117]

   EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

   [114] Exhibit A3.

   [115] Transcript p134-136.

   [116] Transcript p137.

   [117] Transcript p137-138.

   Does the Applicant pass the character test?

4. The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 14 February 2018 the Applicant was convicted of four offences and sentenced to 18 months’ imprisonment. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a), as he has ‘a substantial criminal record’ as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.

5. For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.

   Is there ‘another reason’ why the Mandatory Cancellation Decision should be revoked?

6. In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.

   Primary Consideration A – Protection of the Australian community

7. Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:

   1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

8. Paragraph 13.1(2) directs 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.

9. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:

   (a)  The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)  The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;

   (c)  The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)  Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   (e)  The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (f)    The cumulative effect of repeated offending;

   (g)  …

   (h)   Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

   (i)    …

   (a)  Nature and seriousness of the Applicant’s conduct to date

10. The Tribunal finds that the Applicant’s criminal offending, particularly the domestic violence offences against his wife and the indecent act against a child, is very serious. There have been numerous occasions on which the Applicant has been the subject of an apprehended violence order and he has breached its terms. 

11. The Applicant’s criminal offending when viewed as a whole indicates the very serious nature of his conduct.   In making this finding, the Tribunal has had regard to paragraphs 13.1.1(1)(a) and (b) of the Direction which recognise that sexual crimes and crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed.  The Applicant’s assaults against his wife in 2014, 2016 and 2017 involved a level of violence and should be viewed very seriously. So too should be the numerous breaches of apprehended violence orders (domestic) which were for the protection of the Applicant’s wife.  They demonstrate a pattern of violent behaviour towards and unacceptable disrespect for women.  The Applicant’s offending has been sustained and increasing in its frequency and seriousness.  In addition, the Applicant has demonstrated an ongoing failure to comply with judicial orders, thereby showing a repetitive disregard for Australian law and institutions. 

12. Taking into account the Applicant's criminal behaviour, particularly the violent offences against his wife, the Applicant was treated leniently by the judicial system, receiving only bonds prior to the custodial sentence imposed on him in February 2018.  The Tribunal has had regard to the sentences imposed by the courts as provided in paragraph 13.1.1 (1)(d) of the Direction and finds that whereas these are not substantial, they do not detract from the serious nature of the Applicant’s criminal offending.  A sentence of 18 months imprisonment was imposed on the Applicant for the offences Common assault (DV) – T2, Contravene prohibition/restriction in AVO (domestic) and Assault occasioning actual bodily harm (DV) –T2 against his wife.  This custodial sentence is an objective indicator of the seriousness of the Applicant’s criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].

13. The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal behavior against his wife was frequent and repetitive.  The Applicant engaged regularly in violent and intimidating conduct towards his wife, which included physical and verbal assaults and numerous breaches of AVOs.  The cumulative effect of this repeated offending on the Applicant’s wife, and the fear it instilled in her, is a significant factor supporting the finding that the Applicant’s conduct is very serious.

14. The Tribunal has had regard to paragraph 13.1.1(1)(h) of the Direction and notes that the Applicant was warned by the Department of Immigration in April 2017 of the consequences for him should he continue to re-offend.  Despite this warning, the Applicant committed his most serious offences eight months later.

15. On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct has been consistent over many years, has been violent and directed against a woman and a child, and is therefore very serious.

16. The seriousness of the Applicant’s criminal offending weighs heavily against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

    (b)  The risk to the Australian community should the Applicant commit further         offences or engage in other serious conduct

17. In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:

    1)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    (a)  The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)  The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).

18. In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of his friends and family members and those who provided letters of support.

19. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community, including women.

20. In attributing weight to Primary Consideration A, the Tribunal has had regard to the Applicant’s relatively limited criminal history in Australia which, until the assault against his wife in June 2014, did not include offences of a violent or sexual nature against women or children.

21. In relation to the risk of the Applicant re-offending, the Tribunal notes that most of the Applicant’s criminal offending occurred while he was heavily intoxicated.  Whereas alcohol abuse was the primary factor that caused the majority of his domestic violence offending, the physical and verbal assault against his wife in February 2016 occurred when the Applicant had not been drinking and was preparing to leave for work. 

22. The Applicant has stated his commitment to engaging in counselling and undertaking courses and programs in the community to address his alcohol problem.  However, to date, when the Applicant had an opportunity to undertake rehabilitation for domestic violence, he failed to complete the program. When the Applicant was later referred to a domestic violence course he chose to prioritise working over attendance at the course.  The Applicant has not demonstrated a commitment to taking steps to engage in programs and counselling necessary for him to address his domestic violence offending.

23. The Applicant claims that he will abstain from alcohol in future as he now appreciates the effect it has on his behaviour and his propensity for domestic violence.  He has not however taken the opportunity available to him to attend Alcoholics Anonymous while he has been in immigration detention and his commitment to sobriety has not been tested in the community.  Following the domestic violence offence against his wife in February 2016 he reduced his alcohol consumption for a period of eight months. However he admitted that during this period he did on more than one occasion drink alcohol and become violent, including in July 2017 when he had an altercation with a man at his home. His most serious offending occurred in December 2017 when he was heavily intoxicated.  The Tribunal cannot therefore be satisfied that the Applicant will not resume drinking alcohol to excess and again engage in violent behavior and criminal offending should he be released into the community.

24. The Pre-sentence report dated 13 February 2018 assessed the Applicant as at a low to medium risk of re-offending.  However, his statements to the Department and to his elder brother indicate that he does not fully appreciate the seriousness of his offending and the impact of alcohol on his domestic violence offences.  He has stated that these offences were the consequence of a ‘misunderstanding’ between himself and his wife and influenced by his intoxicated state.  He also has claimed that his wife provoked him into acting violently towards her as she would bring up things that would make him angry and that he only slapped her to control her and prevent her from causing a problem.  He told the Tribunal that he now accepts that his behaviour was serious and he appreciates it will have a long-lasting impact on his wife.  However, the Tribunal cannot be satisfied that these claims are any more than self-serving statements to assist in the re-instatement of his visa or that he has taken full responsibility for his criminal actions towards his wife.

25. On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct, particularly domestic violence against women, is at the low to moderate level but that this risk is unacceptable and the protection of the Australian community weighs against revocation.

26. For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A on balance weighs against the revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration B – The best interests of minor children in Australia affected by the decision

27. Primary Consideration B of Part C in paragraph 13.2 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.

28. The Applicant has four minor children aged eleven, seven, nine and four years. The evidence before the Tribunal is that the Applicant loves his children and has a close relationship with them, particularly his son.  He has cared for them and supported them emotionally and financially when he was working and living with them in Sydney. 

29. In considering the best interests of the child, paragraph 13.2(4) provides:

    (4) In considering the best interests of the child, the following factors must be        considered where relevant:

    (a) nature and the 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 the 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.

30. Having regard to paragraph 13.2(4)(a) of the Direction, whereas the Applicant claims to have a close parental relationship with his children, the evidence before the Tribunal is that from early 2017 he was working interstate and only returning to Sydney for one week per month to stay with his wife and children. The Applicant has therefore had long periods of separation from his children, including the time he has been in gaol and immigration detention.

31. Having regard to the factors in paragraph 13.2(4)(b), the evidence before the Tribunal is that there is a long history of domestic violence by the Applicant against the mother of his children and the Applicant threatened and assaulted her on several occasions when the children were in the house. In light of this evidence, the Tribunal cannot be satisfied that the Applicant would play a positive parenting role in the future for his children if he were to continue to act violently against their mother during visits to see them at their home.

32. Having regard to paragraphs 13.2(4)(c), 13.2(4)(d) and 13.2(3)(f), there is no evidence as to the impact of the Applicant’s history of criminal offending on his children, or the impact the separation from their father has had on them, nor is there any evidence of the Applicant’s children’s views as to how they would be affected by the Applicant’s removal from Australia.

33. Considering the factors in paragraph 13.2(4)(e), the Applicant’s wife has been the primary carer of their children for nearly three years and she is assisted in their parenting by her brother.  They now live in rural New South Wales and are doing well at school and the Applicant’s wife has no plans to return with the children to Sydney.  She is coping well caring for their son who has a number of medical conditions and is attending a special needs school locally and is making good progress.  Although they are separated, the Applicant’s wife is happy for him to visit the children when he wishes to do so.

1. Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that this Primary Consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the Applicant’s children’s best interest (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.

   Primary Consideration C – The expectations of the Australian community

2. Primary Consideration C of Part C in paragraph 13.3(1) states:

   1)    The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

3. The Principles contained in paragraph 6.3 of the Direction are relevant to this Primary Consideration.  Principle 1 recognises that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. Principle 2 recognises that it is the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.

4. In a number of recent decisions, the Federal Court has considered the scope and application of this Primary Consideration.  In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed as follows in relation to the consideration detailed in this paragraph of the Direction:

   [76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. 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 been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is 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.

   [77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).

5. 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.

6. Last year, the Federal Court delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).

7. FYBR is authority in support of what has been termed the ‘narrow’ approach[118] to the determination of the expectations of the Australian community. As observed by Perry J:

   It follows, in line with the authorities, that cl 11.3 of Direction 65 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 ...[119]

   [118] DKXY at [22].

   [119] FYBR at [42].

8. A broader approach to the determination of the expectations of the Australian community was adopted by Griffiths J in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:

   (a)  the Government’s views regarding the expectations of the Australian community must be given due regard; and

   (b)  so must all other circumstances which are relevant in a particular case.[120]

   [120] Dalley at [122].

9. On 24 October 2019, the Full Court of the Federal Court delivered its judgment in FYBR v Minister for Home Affairs [2019] FCAFC 185, being an appeal from Perry J’s judgment in FYBR. The Full Court dismissed the appeal which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, (Charlesworth and Stewart JJ, Flick J dissenting) did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.

10. Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa.  The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As she stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.

11. Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek via this device ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are to be applied in every case but they are not expressed in relation to any case.  He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.

12. Flick J at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-[22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.

13. In summary, the authorities, particularly the reasoning of the members of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, affirm the proposition that the Government’s view about the expectations of the Australian community must be considered, but this does not amount to dictating the outcome of a particular case, and the decision-maker must ultimately decide how the specific circumstances of an applicant’s case interact with the principles in Direction 79.

14. Having regard to the expectation of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and judicial orders and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving violence against a woman and an indecent act against a child, which as recognised by Principles 2 and 3, should generally result in the cancellation of the non-citizen’s visa.

15. In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides:

    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

16. It has also been informed by Principle 7 which provides:

    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

17. The Applicant arrived in Australia at the age of 31 and is now aged 42 years.  Since arriving in Australia in 2008 he has been in paid employment.  The Applicant has contributed to the economy and paid taxes as well as supporting his wife and four children financially.  Since he has been incarcerated they have had to rely on welfare benefits to meet their daily living expenses.

18. Having regard to the factors in Principles 5 and 7, particularly the length of time the Applicant has been in Australia and his consistent positive contribution to the Australian community and economy, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had not made these contributions and had been resident in Australia for a shorter period of time.

19. Having regard to the factors in Principles 7, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory visa cancellation on the Applicant’s wife and four children, all of whom are Australian citizens.  The Applicant’s wife’s evidence is that their marriage has permanently broken down and there is no prospect of reconciliation between them.  They will remain living in rural New South Wales and if the Applicant is able to do so he will provide financially for his children. However, his wife has permanent accommodation and the assistance of her family in the support and upbringing of the children.

20. The evidence indicates that for nearly three years the Applicant has had only limited physical contact with his children due to his work commitments and subsequent incarceration. The impact on the Applicant’s children of the non-revocation and his removal from Australia will be detrimental as it will prevent them from re-establishing a close relationship with their father.  The impact on the Applicant’s four Australian citizen children is a factor which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.

21. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C on balance weighs against revocation of the Mandatory Visa Cancellation Decision.

    Other considerations

22. While the three Primary Considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘Other considerations’ must be taken into account by the decision-maker where relevant.

23. The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:

    ... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    International non-refoulement obligations

24. There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this consideration is of neutral impact.

    Strength, nature and duration of ties

25. Paragraph 14.2(1) of the Direction states:

    1)    Reflecting the principles at 6.3, decision-makers must have regard to:

    a)    How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:

    i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)    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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

26. Having regard to the factors in paragraph 14.2(1)(a), the Applicant has resided in Australia for 11 years and has been consistently employed and has made a positive contribution to the economy.  He has supported his wife and four children financially and paid taxes.  The Applicant first offended six years after arriving in Australia, although this offending was of a relatively minor nature.

27. Having regard to the considerations in paragraph 14.2(1)(b), the evidence demonstrates that the Applicant has significant ties to Australia, particularly his four children, with whom he wishes to reconnect and rebuild their relationship and be physically present in their lives.  The Applicant’s extended family in Australia includes an uncle and two cousins.

28. On the basis of the evidence before it, and having regard to the factors in paragraph 14.2(1), particularly the length of time the Applicant has resided in Australia and his positive contributions to the economy, as well as the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.

    Impact on Australian business interests

29. Paragraph 14.3(1) of the Direction states:

    (1)  Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery an important service in Australia.

30. The Applicant’s employment prior to his incarceration was working in the railways. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to Fiji.

    Impact on victims

31. Paragraph 14.4(1) of the Direction states:

    (1)  Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

32. In relation to impact on victims, the Applicant’s wife provided a letter of support for him in which she states that the Applicant ‘is not a threat to anyone and has learned a valuable lesson by his incarceration and detention’.[121]

    [121] Exhibit A4.

33. The Tribunal notes that the Applicant and his wife are separated and that she is therefore unlikely to be a victim of any future re-offending by the Applicant.

34. On the evidence before the Tribunal, this consideration weighs neither in favour nor against the revocation of the Mandatory Visa Cancellation Decision.

    Extent of impediments if removed from Australia

35. The Direction states in paragraph 14.5(1) that:

    1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)The non-citizen’s age and health;

    b)Whether there are substantial language or cultural barriers; and

    c)Any social, medical and/or economic support available to them in that country.

36. Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 42 years and has no diagnosed medical or psychological conditions or other health concerns.

37. Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Fiji until the age of 31 years and is familiar with life in his home country. The Applicant’s evidence is that he has many family members in Fiji, including two brothers, his parents and two daughters, with whom he has a close relationship.  He will therefore have family to support him emotionally and financially if he is removed to Fiji. 

1. Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all Fijian citizens including health care, welfare benefits and social services. The economic and employment opportunities in Fiji are not as favourable as those in Australia. However, the Applicant has many years of employment experience and has completed a number of vocational courses in Australia which will assist him in finding employment in Fiji.

2. Having had regard to the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration does not weigh in favour of the revocation of the Mandatory Visa Cancellation Decision.

   CONCLUSION

3. In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly the domestic violence offences against his wife and the indecent act against a child, and the low to moderate risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

4. Primary Consideration B weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s four children for him to remain in Australia.

5. Primary Consideration C on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia. The duration of his residence in Australia, his positive contributions to the economy, and the interests of his Australian citizen children are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that his visa be reinstated.

6. In regard to the relevant Other Considerations, only the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision.

7. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

   DECISION

8. The Reviewable Decision dated 10 October 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[SGD].......................................

Associate

Dated: 3 January 2020

Date(s) of hearing:	5 and 11 December 2019
Applicant:	In person
Solicitors for the Respondent:	M Donald, Sparke Helmore