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

Calimoso and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 511 (1 March 2022)
Division:GENERAL DIVISION
File Number(s): 2021/9553
Re:Garry Giovanni Japzon Calimoso
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth
Date:1 March 2022
Date of Written Reasons: 15 March 2022
Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 1 MARCH 2022 NAMELY:
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 1 October 2021 refusing the applicant’s Regional Sponsored (Provisional) (Class SP) visa and substitutes a decision that the applicant should not be refused a visa pursuant to section 501(1) of the Act.
...................[Sgnd]........................
Senior Member B J Illingworth
Catchwords
MIGRATION – refusal to grant a visa – s 501 character test applied – whether discretion to refuse visa should be exercised – considerations in Direction 90 – whether considerations weigh in favour of refusing visa – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Firearms Act 1977 (SA)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration), Re [2021] AATA 1869
PQSM v Minister for Home Affairs [2019] FCA 1540
VWLL and Minister for Immigration and Citizenship, Re (2012) 138 ALD 626
ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration), Re [2021] AATA 1738
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B J Illingworth
15 March 2022
INTRODUCTION

Pursuant to s 501(1) of the Migration Act 1958 (the Act) the applicant was refused a Regional Sponsored (Provisional) (Class SP) dependent visa (the visa) by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 1 October 2021.
The delegate found that the applicant did not pass the character test because on 17 December 2018 he was convicted in the District Court of South Australia for the offence of supply a firearm (3 counts) and was sentenced to two years three months imprisonment. He received a non-parole period of one year to be served on Home Detention. The delegate then had regard to Direction 90, Visa refusal and cancellation of a mandatory cancellation of a visa under section 501CA (the Direction) made under s 499 of the Act and decided to refuse to grant the applicant the visa application.
This is an application pursuant to s 500(1)(b) of the Act by the applicant, for review of the delegate’s decision to refuse the visa application. There was no dispute before the Tribunal, that the Applicant did not pass the character test. The issue for the Tribunal was whether, in the exercise of the discretion in s 501(1) of the Act the applicant’s visa application should be refused.
At the hearing the applicant was represented by Luke Edwards of Work Visa Lawyers. The respondent was represented by Cameron Retallick of Australian Government Solicitor. The applicant gave evidence and was assisted by an interpreter. The Tribunal also heard evidence from Mrs C, the applicant’s wife, and Ms CA, the applicant’s daughter-in-law.
The Tribunal received into evidence the various documents filed in the Tribunal contained within the G documents[1], supplementary G documents[2] , and other supporting documents[3] and Department of Foreign Affairs and Trade Country Information tendered during the hearing.[4]
[1] Exhibit A.
[2] Exhibit B.
[3] Exhibits C-I.
[4] Exhibit J.
For the following reasons the Tribunal sets aside the reviewable decision.
BACKGROUND
The applicant is currently 47 years of age and was born in the Philippines in December 1974. He is a citizen of the Philippines.[5] The applicant arrived in Australia on 6 July 2008 aged 33 years.[6] He came to Australia with his wife and two sons. He was named a dependent on his wife’s student visa.[7] The wife’s aunt was the visa sponsor.
[5] Exhibit A, attachment M, page 75.
[6] Exhibit A, attachment M, page 81.
[7] Exhibit A, attachment M, page 83.
On 13 October 2015, the applicant’s wife applied as the primary applicant for a Regional Sponsored (Provisional) (Class SP) visa (the visa application). The applicant and his youngest son were “migrating family members” included in the visa application.[8] The applicant was granted a Bridging Visa C on 15 October 2015 pending the outcome of the visa application.
[8] Exhibit A, attachment AD, pages 199-215.
Other than the offences enlivening the applicant’s character consideration, the applicant has never committed a criminal offence in either the Philippines[9] or Australia.[10]
[9] As evidenced by the “Republic of Philippines Department of Justice” clearance, Exhibit A, attachment G, page 47.
[10] Exhibit A, attachment A pages 21-22.
Background to the offence
The applicant’s offending in July 2015 involved a Filipino gentleman Mr Conde, who he first met at a Filipino community party in or about 2014. On that occasion the applicant spoke to Mr Conde of his involvement in basketball and pistol shooting. The applicant was a member of the Adelaide University Regiment Rifle and Pistol Club (AURRPC), had a firearm licence, and owned a firearm.
The applicant said that he and Mr Conde were not friends and he did not see him for approximately two years until they met again at another Filipino party. Mr Conde then enquired if the applicant was still involved in the gun club. The applicant subsequently took Mr Conde to his gun club for a shoot. Mr Conde asked if he could come again.
The applicant took Mr Conde to a gun club competition and shortly after that Mr Conde asked if he could return to the gun club for training. The applicant’s gun club subsequently opened its membership list, and the applicant again took Mr Conde to the gun club. After a few months Conde asked if he could get a gun in his own name. The applicant told him that he could purchase a gun and asked Mr Conde about the status of his firearms license. Mr Conde said it was being processed. Mr Conde also showed the applicant his identification card for the Para Hills Gun Club. The applicant said he therefore believed that Mr Conde had been involved in that gun club and he trusted him.
On 7 April 2015, the applicant and Mr Conde attended the Marksman Gun Shop. Mr Conde purchased three class H guns. He paid for the guns and the applicant produced his gun licence. The guns were registered in the applicant’s name and he retained possession of the guns. It was intended that Mr Conde would take possession of all three guns when he received his firearms license.
The applicant was asked why they purchased three guns. He said it was because Mr Conde upon seeing each of the three guns wanted to purchase them. The applicant said that he did not know at that time that Mr Conde’s firearms licence has been cancelled, and first learnt of that fact, only when the guns were lost, and the applicant was being investigated.
The applicant said he believed Mr Conde’s firearms licence was still being processed and he did not wait until Mr Conde obtained his firearms license to purchase the guns, because he trusted Mr Conde.
The applicant explained that subsequently, Mr Conde telephoned him and asked that the applicant come to his home and sign a letter attesting to Mr Conde’s good character, which was required for the purpose of obtaining the firearms licence. The applicant went to Mr Conde’s home. He only read the first few lines of the letter and signed it without reading the balance. The applicant maintained his belief that the purpose of the letter was to assist Mr Conde to obtain his firearms licence.
Subsequently in May 2015, police attended the applicant’s home to speak to him in relation to the character letter. The police had a copy of the letter with them. The applicant recognised the letter and his signature. He told police that he had signed the letter but did not read it fully and that he trusted Mr Conde. The applicant said in evidence that he did not know whether the contents of the letter were false.
The applicant was referred to the police apprehension report[11] which records the applicant saying that he signed the reference but did not write or read the contents of it. The report then reads “after he was given an opportunity to read that reference, he described the content as untrue”. When asked if he remembered reading the letter and making that statement the applicant said, “that’s right, I told them I signed the letter but did not read it myself”. The applicant said he told the police that he was not the one that wrote the document.
[11] Exhibit B, attachment G6, page 295.
Insofar as the police record is different to the evidence of the applicant, I have taken into account, that the applicant was assisted by an interpreter during the course of the hearing. The applicant on occasion answered questions asked of him without the use of the interpreter but in doing so some of the answers were imprecise, not due to the applicant misleading the Tribunal but because of the level of his English. I am satisfied that this explains the inconsistency between the applicant’s evidence and the record of the police.
The applicant said that when the police showed him the letter they asked if he was aware of the black market. He said no. Police then told him that someone was selling guns for Mr Conde on the black market. The applicant said in evidence that he then thought twice about “hanging out” with Mr Conde in the future.
The applicant showed police his own guns together with the three H class guns purchased by Mr Conde, which were contained in the applicant’s gun safe. The three class H guns had remained in his possession since purchase, and he was awaiting Mr Conde becoming a firearms licence holder. Police did not advise him that Mr Conde’s firearms licence had been previously cancelled. He remained of the belief that at that time Mr Conde’s firearms licence was still being processed.
The applicant said that a person could not own a firearm until he or she had been a firearms licence holder for six months. He also explained the purpose of a firearms loan agreement which provided a method by which gun owners could lend their guns to one another for a period of up to 28 days. He had entered into such an agreement with two friends Mr B and Mr D whom he had introduced into the gun club.[12]
[12] Mr B and Mr D each supplied a handgun to Mr Conde at the same time as the applicant’s offence. They were each charged with one count of supply firearm and were sentenced by Judge Sulio on 17 December 2018.
The applicant described in evidence a series of events that occurred in the 3-to-4-day period before he supplied the three firearms to Mr Conde and a signed loan agreement was entered into between him and Mr Conde.
The applicant said that he had fired the three handguns at the shooting range. He phoned Mr Conde to invite him to try the guns. After that he said Mr Conde’s mood change. When the applicant arrived home, he received a message from Mr Conde asking if anyone had been following them, and the applicant replied no. Mr Conde then asked for his guns. The applicant said no, and that he had to wait for his firearms licence.
Mr Conde subsequently sent the applicant an SMS message which said if the applicant did not give Mr Conde what he wanted “we will take them by force”. The following day, Mr Conde telephone the applicant demanding the delivery up of the guns and made a similar threat. The applicant told Mr Conde to wait until he obtains his firearms licence, and the guns would be delivered.
Mr Conde and another man then came to the applicant’s home. It was dark and around 6:30pm. The applicant’s wife, their two sons, and his wife’s aunt were present. Mr Conde and the other man stood in the applicant’s porch. The porch light was on. He described the other man as Australian, 5’6”– 5’7” tall, bald, muscular build and wearing a T-shirt with tattoos on both arms. They were not introduced. The applicant remained inside and spoke to the men through the screen door. They were initially not aggressive and spoke in a calm manner but when the applicant refused to deliver up the guns their voices became louder.
The men asked to speak to the applicant outside, but he initially refused. The applicant’s wife came to the door and said, “why are you here and what do you want with my husband?” The applicant said he briefly stepped outside. The men said, “just give us what we need”. The applicant asked them to wait for the firearms licence and he would deliver up the guns. The wife’s aunt was inside the house ‘screaming’. He returned inside the house and closed and locked the front door. This incident lasted 10 – 15 minutes.
The applicant said that he was scared and started crying. About 10 minutes later, the applicant was telephoned by Mr Conde who threatened him saying, “if you don’t give us what we want we will send someone to take them by force.” He again told Mr Conde that he would deliver up the guns when he had his firearms licence. The applicant said that he was scared for his safety and the safety of his wife, children, and wife’s aunt.
A few days after the threat and on 25 July 2015, Mr Conde sent the applicant an SMS message with the photograph of his firearms licence. The applicant rang his friends Mr B and Mr D who were each supplying a firearm to Mr Conde. He picked up his friends and drove to Mr Conde’s home. He saw the pink firearm licence. He was not sure if it was a temporary or permanent licence. He delivered up the three firearms to Mr Conde and a 28-day loan agreement was signed giving possession of the three firearms to Mr Conde. A second loan agreement dated 28 August 2015 further extended the period of the loan of the firearms.
The applicant said that he did not know whether the guns would be returned to him at the end of the of the loan agreement. He knew that Mr Conde had not had his firearm licence for a period of six months entitling him to purchase or possess a firearm. He was not thinking about that legal requirement when he delivered the guns in contravention of the firearms legislation. He repeated that he was scared for his safety and that of his family. He did not think about going to the police. He had never had any contact with police in the Philippines or Australia other than in relation to the firearms. He said he did not know how influential Mr Conde was. In his statement dated 18 March 2019[13], he said because of his experience with police in the Philippines, he did not trust the police. He made a similar submission to the District Court which submission the Learned Sentencing Judge accepted.
[13] Exhibit A, attachment H, pages 48-52.
The police subsequently came to the applicant’s house and he was interviewed. He was advised that one of the guns supplied to Mr Conde had been found in the possession of another person. Police conducted a search of the house. The applicant did not have any firearms in the house. He had decided to no longer be involved in firearms sport and had already sold his firearms. Police did find a container with ammunition that was not correctly stored. He was not formally charged with that offence but received a warning.
Sentencing Remarks of District Court Judge Sulio
On 17 December 2018 the applicant appeared before Judge Sulio in the Adelaide District Court and was dealt with for three counts of supplying a class H firearm to Mr Conde. He was sentenced to 2 years and three months imprisonment with a non-parole period of one year; the sentence to be served on home detention.
Also appearing before the District Court to be dealt with were two co-offenders Mr D and Mr B who each pleaded guilty to one count supplying a H class firearm to Mr Conde.
At the time of the offences, each offender was the holder of a firearms licence and were members of the Adelaide University Regiment Rifle and Pistol Club. Each offender and Mr Conde were of Filipino heritage.
Judge Sulio summarised the circumstances of the offending as follows:
“Mr Conde was the holder of a temporary licence authorising him to possess handguns for the purpose of approved firearms club activities, subject to a condition that he produce a proof of membership of a recognised club within 14 days. The conditions of that licence prohibited him from acquiring any firearms for six months.
Initially Mr Conde had been refused a firearms licence because of his offender history. He appealed that decision. You Mr Calimoso signed a letter supporting his appeal even though someone else had written the letter. Ultimately, agreement was reached between the licensing authority and Mr Conde as to the terms of his licence.
On 31 May 2015 police had attended at your house, Mr Calimoso, as a result of concerns in relation to that letter of support for Mr Conde. They enquired about your firearms. You advised police that you held two handguns on loan. You produced loan documents from your co-offenders Mr Binaday and Mr David, each transferring a 9 mm pistol to you. The loan agreements which were dated 10 May 2015 were for 10 days and had expired. Police seized the firearms.
On 3 June 2015 you attended upon police and were cautioned against breaching the terms of the firearm loan agreements. In mid-June you, Mr David, and you, Mr Binaday, also attended on police, were cautioned and ultimately had your 9mm pistols returned.
On 24 July 2015 Mr Conde paid for a temporary licence. He did not comply with the condition that he provide proof of membership of a recognised firearms club. On 25 July 2015 each of you loaned firearms to Mr Conde for 28 days pursuant to firearm loan agreement. Such firearm loan agreements are regulated by s 15B of the Firearms Act and Regulation 9A of the Firearms Regulations. You Mr Calimoso purported to loan Mr Conde two 9 mm pistols and .22 calibre pistol and you, Mr Binaday, and Mr David each a 9 mm pistol.
Mr Code was subsequently investigated in relation to the whereabouts of the loaned firearms. As a result, Mr David’s firearm was found in the possession of one Mr Dal Santo, secreted in a vehicle he was driving. Mr Binaday’s firearm and Mr Calimoso’s three firearms have never been located.”
His Honour summarised the applicant’s personal circumstances as follows:
“Mr Calimoso, I turn to your personal circumstances. You are now 43 years old. You were 41 at the time of the offending. You have no offender history. As I have said, you were born in the Philippines. You were educated until the age of 17 years and completed high school. You commenced, but did not finish, a course to become a computer technician.
You apparently played professional basketball in the Philippines for the national league, which is known [sic] the Commercial League. Your basketball career was cut short in 1995 when you ruptured a knee ligament.
Your father worked in a government department and you obtained work as an encoder for the government. Between 2001 and 2008 you also coached amateur basketball teams.
You married in 1995. Your wife’s uncle was living in Australia and sponsored your wife to come to Australia to complete her nursing studies. You were able to come to Australia under your wife’s student visa as a dependent. You ultimately arrived in Australia in 2008 and began work as a personal carer. Your wife qualified as a nurse in 2012 and she currently has a pending permanent residency application.
You have two children. Your oldest son is aged 22 years and lives in the Philippines and your youngest son, aged 20 years, lived with other family in Adelaide. You and your wife live in Mount Gambier where you are employed as a labourer at a wholesale nursery and your wife works in an aged care facility.
You said that your offending occurred in circumstances of your vulnerability and naivety in trusting Mr Conde, who you considered to be a friend. You said that he provided finance and that you agreed to use your firearms licence to purchase three guns on behalf of Mr Conde, believing he held the appropriate licence,
You said that after a short time, Mr Conde became unhappy with the loan arrangements and demanded to retain the firearms permanently. You said that you were reluctant, but Mr Conde made ongoing threats towards you and your family. You said that you feared for your safety and that of your family but did not want to go to the police as a result of your mistrust of police based on your experience in the Philippines. I accept that your motivation was driven, at least in part, by those considerations.
I received a letter from you. You said that you were deeply sorry for being naïve and negligent. You said that you had never before engaged in criminal activity and had tried to be a good member of the community. You said that you have learnt to be more responsible and are mindful of the effect of your actions on your family and on the community.”

In considering whether the applicant’s sentence should be served on home detention His Honour said as follows:
“Having regard to the matters to which I have referred, and in particular the lack of any offender history, your otherwise good character and my acceptance that there is no real risk of you re-offending, and bearing in mind the punishment upon you will act as a deterrent, albeit perhaps a lesser deterrent than an immediate custodial sentence, ultimately it seems to me that the protection of the community is better served by enabling you to continue in your employment and to continue to support your family, rather than by requiring you to serve the sentence in prison which would inevitably result in the loss of your employment, potentially damage your relationship, expose you to hardened criminals, and make it less likely that upon your release you would be able to take up productive employment in the community.”
His Honour noted that Mr Conde disposed of the firearms contrary to law. He refused to answer police questions about the firearms which was an offence. The firearms supplied by the applicant have never been located. Mr Conde was sentenced to 5 years and three months imprisonment for the trafficking offence. He was dealt with for other offences which sentences were to be served concurrently. His non-parole period was 2 years 10 months.
LEGISLATIVE FRAMEWORK
The reason for the refusal of the visa application was because the applicant did not pass the character test under s 501(1) of the Act. Relevantly, s 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
ISSUES
The decision to refuse the Applicant’s visa was made on the basis that the applicant did not pass the character test and, after taking into account the relevant considerations in the Direction, the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant the applicant’s visa.
The issues for the Tribunal are:
(a)whether the applicant passes the character test as defined in s 501(6) of the Act; and
(b)if he does not pass the character test, whether to exercise the discretion in s 501(1) of the Act to refuse the visa application.[14]
[14] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
DOES THE APPLICANT PASS THE CHARACTER TEST?
The applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Having considered the sentence imposed by the District Court on 17 December 2018, I am satisfied that the applicant does not pass the character test and cannot rely on s 501(6) for the cancellation of his visa refusal.
WHETHER THE DISCRETION IN s 501(1) OF THE ACT SHOULD BE EXERCISED.
When considering the exercise of the discretion in s 501(1) of the Act, the Tribunal is bound by subsection 499(2A) of the Act to comply with any direction made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (the Direction) applies[15].
[15] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.
Ministerial Direction No. 90
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
The applicant and respondent agree that Primary Consideration 2, and Other Considerations (a) (c) and (d)(ii) do not arise and are to be given neutral weight. I agree with that concession. I will now deal with the balance of each of those Primary and Other Considerations in turn.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers keep in mind 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the direction requires decision-makers 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.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department and whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending.
In in his sentencing remarks, Judge Sulio observed “that the regulation of the possession of firearms is an important part of the protection of society.” He referred to the importance that police be aware of the identity of those who possess firearms, and that such possession is limited to those who are legally entitled and properly trained in their possession and use. He also observed that it was important the police know the whereabouts of such firearms.[16] I respectfully agree with His Honours comments.
[16] Exhibit A, attachment B, page 25.
The delivery of the firearms to Mr Conde, by the applicant, at a time when Mr Conde was not legally entitled to own or possess a firearm, and the subsequent disposal of those firearms by Mr Conde, resulted in police no longer having any knowledge of the whereabouts of the firearms and who possessed them. That undermines the overriding policy of the Firearms Act 1977 (the Firearms Act) and the protection of the public. The applicant’s offending was the very mischief the legislative scheme was designed to avoid.
In sentencing the applicant, His Honour recognised the importance of deterrence and in particular, to deter others from committing similar offences.
The offending was plainly serious, and I understand the applicant does not argue to the contrary.
There are, however, a number of factors, in relation to the commission of the offence which are relevant to the applicant’s culpability and the weight to be given when considering this Primary Consideration.
The applicant’s offending was not for personal benefit or gain. He did not consciously embark on the acquisition and distribution of firearms in contravention of the Firearms Act.
The applicant assisted Mr Conde because he believed him to be a person who was a member of a firearms club, enjoyed a mutual interest in firearms and gun clubs, who was in the process of acquiring his firearms licence and to whom the applicant intended to deliver up the firearms when he was licensed. I infer by licenced, the applicant meant licenced in accordance with the Firearms Act, namely, that Mr Conde was the holder of a firearms licence for at least six months, which entitled him to own or possess a firearm.
At least initially, the applicant trusted Mr Conde. I accept the applicant and Mr Conde were never friends.
The applicant did not deliver the firearms to Mr Conde when first requested to do so. He retained them in his possession following purchase and withheld them from Mr Conde despite repeated requests and threats of violence including Mr Conde attending his home in the company of another person, which I infer was to intimidate and pressure the applicant to deliver up the firearms in contravention of the Firearms Act.
The applicant delivered up the firearms to Mr Conde only once Mr Conde produced a firearms licence. I accept the applicant’s evidence, namely, that at the time he supplied the firearms to Mr Conde he did not have regard to Mr Conde’s obligation to be licenced for six months. He was wrong to hand over the firearms. I also accept that he acted out of genuine fear for his safety and that of his family.
The applicant’s wife gave evidence of the events of that evening when Mr Conde and another came to the house demanding the firearms and threatening the applicant including by telephone. She confirmed that the applicant was crying as a consequence of the evening’s events. He was distressed and unsettled throughout that night. She said he was restless, pacing, agitated, and overcome by fear. He cried, he was restless, and crying later in the evening. He was up and down in bed. He was not making sense. He was overwhelmed by fear.
I accept the applicant’s description of the fear he suffered and as described by his wife, following the threats by Mr Conde.
To hold a firearm licence is a privilege and given the circumstances in which the applicant was retaining possession of the firearms, he also had an obligation to ensure that they were not released to another who was not a qualified licence holder.
The respondent referred to four facts about which the Tribunal ought be satisfied namely (i) three firearms were purchased for money from Mr Conde with the intention that he would possess them in the future; (ii) on 15 May 2015 following conversation with police, the applicant was aware of concerns about Mr Conde and whether he should “hang out” with him; (iii) the applicant had been cautioned about the obligation under the Firearms Act when police attended on a separate occasion to discuss certain firearms loan agreements between the applicant and his two friends Mr B and Mr A; and (iv) the applicant provided the handguns at the time he knew that Mr Conde was not authorised to possess them. I agree with those submissions.
The respondent urged upon the Tribunal a finding that the applicant embarked on a premeditated collusion with Mr Conde to provide to him the firearms that he knew Mr Conde was not entitled to possess and persisted in doing so despite police intervention and warning. In the alternative, it was submitted that the applicant displayed a weakness of character when circumventing the Firearms Act by supplying the firearms.
I respectfully reject the first proposition urged by the respondent. I accept the applicant’s evidence about the factual circumstances leading up to his offence, his repeated refusal to deliver up the firearms to Mr Conde and that he did so only when Mr Conde produced a licence and because he feared for his safety and that of the members of his family following threats by Mr Conde. Judge Sulio sentenced the applicant having regard to those considerations. His Honour also accepted that the applicant did not go to the police due to mistrust of police based on experiences in the Philippines.
I am satisfied that the applicant did not have the strength of character to deal with the threatening conduct of Mr Conde. He is described by many of those who gave character references as a gentle, kind, and trustworthy man who is supportive of his family and who has worked as a personal carer, caring for vulnerable members of the community. I accept those character references. He placed his trust in the wrong person namely Mr Conde and then found himself in a frightening position which resulted in him finally making a poor decision.
Having regard to those unique personal matters and the culpability of the applicant, I reduce the heavy weight I would otherwise give when considering the seriousness of the offence in weighing this Primary Consideration.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups, or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending to date, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower, as the seriousness of the potential harm increases, is also a relevant consideration.
The Firearms Act provides a scheme that regulates the ownership possession and permitted use of firearms by members of the community and ensures that police know the identification of those who possess firearms and the whereabouts of firearms. To breach that scheme exposes the real risk of firearms entering the community possessed by those who may misuse the firearm, engage in criminal activity involving the use of firearms and place the public at risk.
However, when having regard to the applicant personal circumstances as I have outlined, including the fact that the applicant has never committed an offence in the Philippines or in Australia save for the subject offending; that he served his sentence on home detention which enabled him to continue with his employment with a nursery and engage with the community, that upon completion of his home detention sentence he returned to and remained in the community; between April and November 2021 without incident; and that he has been in in immigration detention without incident, are all factors that give the Tribunal confidence that it is very unlikely that the applicant will offend in any respect in the future.
The applicant has also ceased involvement in gun sports, sold his firearms, and has not sought renewal of his gun licence which are further factors which inform the Tribunal’s confidence that it is very unlikely that the applicant will reoffend.
I am satisfied that the risk of reoffending and consequent risk of harm to the community in the circumstances of this matter are so low that the weight to be given to this aspect of Primary Consideration 1 is properly reduced.
Conclusion Primary Consideration 1

The respondent urged upon the Tribunal that this Primary Consideration ought to weigh heavily against the applicant and in favour of the refusal of his visa application.
In the unique circumstances of this matter, and in particular the applicant’s otherwise good character, the circumstances of the offending, and that the risk of reoffending is so low, the heavy weight I would otherwise give to this Primary Consideration should be significantly reduced.
Accordingly, in the circumstances of this matter I am satisfied that medium weight should be given this Primary Consideration in favour of the respondent and the exercise of the discretion in s 501(1) of the Act to refuse to grant the applicant’s visa application.
Primary Consideration 3 – The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     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);
·     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;
·     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;
·     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;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant in his Statement of Facts Issues and Contentions did not rely on this Primary Consideration. The Tribunal raised a number of potential children named in the various witness statements to whom this Primary Consideration potentially applied. The applicant was granted a brief adjournment to reassess that evidence. The Tribunal was advised that there was a further child in respect of whom, there was no statement before the Tribunal. The hearing of the application was adjourned to enable the applicant to provide a statement to the Minister at least 2 business days before the hearing in accordance with s500(6H) of the Act.
KS
The applicant and his wife moved to Mt Gambier in August 2016. They first resided at the home of Ms CS who was a member of the Filipino community and a co-worker of the applicant’s wife. They were both employed as nurses.
Ms CS had a son KS who was then 3 - 4 years of age. He is now 10 years of age. KS’s had no father figure in his life.
The applicant and KS immediately became very close, and KS called the applicant uncle. Initially, the applicant regularly cared for KS for approximately two hours a day and when Ms CS and the applicant’s wife were at work, KS would be in the applicant’s care for the whole day.
After about six months when the applicant and his wife found their own home, the applicant would still to see KS regularly. The applicant said his relationship with KS was like father and son. The applicant taught him general good manners and he had a parental relationship with him.
When the applicant was serving his home detention sentence, he continued to communicate with KS, who came to visit 2 to 3 times a week.
The applicant’s wife gave similar evidence with respect to the applicant’s relationship with KS. She described the applicant as a father figure to KS.
The applicant’s relationship with KS continued upon completion of his home detention, and until he was taken into immigration detention in about November 2021. The applicant has not spoken to KS recently. Ms CS has arranged for another friend to look after KS when required.
The applicant’s wife said that the family had recently relocated to Adelaide where the applicant is detained in immigration detention. It is intended they will remain in Adelaide. When the family left Mount Gambier, KS asked why they were leaving. They told KS that he could come to visit them in Adelaide.
Future contact with KS would be limited because of the distance between their homes and the applicant accepts he will not play a day-to-day role in his care as he did before. He said it will be more about when he comes to Adelaide to stay. He will maintain his relationship with KS. I accept the applicant’s evidence that he genuinely wants to play a continued role in KS’s life.
The applicant said that KS asks when he will see his uncle Garry and it was his belief that if he were to return to the Philippines it would have a big impact on KS.
The Tribunal received a letter dated 9 February 2022 from Ms CS.[17] She corroborated the evidence of the applicant and his wife. She confirmed that the applicant and his family stayed with her for approximately 10 months following their arrival in Mt Gambier, and that KS and the applicant immediately formed a close and loving relationship. She said her son called the applicant his Tito (uncle). She said the applicant would take KS to Sunday mass with him and his wife. She trusted the applicant to look after her son. The applicant treated KS like his own son.
[17] Exhibit H.
The Tribunal also received a handwritten letter from KS who referred to the applicant as Tito Garry. KS expressed his love for the applicant and his hope to see him again.
The Tribunal accepts the evidence about the applicant’s relationship with KS and that the applicant’s return to the Philippines will be upsetting to KS. However, the Tribunal also takes into account that should the applicant return to the community and remain in Adelaide he will not play the close parental role he formerly enjoyed with KS. Nonetheless he will continue to play a role in KS’s life including a parental role, albeit to a lesser degree.
The Tribunal was referred to a close group of family friends and the applicant’s relationship with the children of those families. The families would see each other regularly and when the applicant was in Mt Gambier and not on home detention, the applicant and his family regularly returned to Adelaide to see their friends. I will deal with each family and their children separately.
The M family
The applicant described a close family friendship and that their respective families are always together.
The M family have three daughters, five years, three years and 11 months of age. The children refer to the applicant as “Uncle Okay” because the applicant always gives them a thumbs up gesture.
The applicant and his wife would stay at the M Family home from time to time when in Adelaide.
The applicant described a close and loving relationship with each child. He said he would play with the children regularly. He would give them treats and cared for them. He regarded them as his own children. This close bond with the children of close friends, he said, was typical in the Filipino community.
The applicant’s wife said that the three children constantly ask “where is uncle okay” particularly when they come to their home, see his car but he is not present. The families regularly video called the applicant whilst he was on a home detention and more recently in immigration detention. The children love talking to him and miss him. Both the parents of the M family are nurses and the applicant, and his wife regularly cared for the children.
The Tribunal received a letter from Mrs M dated 4 March 2019.[18] She spoke glowingly of the applicant, that he helps in the garden, cooked meals for them and that her “children adore him and love to play with him.”
[18] Exhibit A, attachment S, pages 113-114.
The applicant said that each of the three children will miss him to the same degree should he return to the Philippines. I am satisfied that the interests of each child do not differ.
The A family
The applicant and his family enjoy a similar relationship with the A family as they do with the M family. The applicant and his family would also stay at the A family home from time to time when in Adelaide. They are all very close. The applicant would cook for family gatherings and enjoyed a close and loving relationship with the family and their children.[19]
[19] Applicant’s Statement of Facts, Issues & Contentions, page 29.
The A family has one child under the age of 18 years to whom this Primary Consideration applies namely a son who recently turned three years of age. The applicant’s wife is that child’s godmother. The applicant has a similar relationship with this child as he does with the children of their other friends. The child misses the applicant and regularly asks after “uncle okay”.
The applicant described his relationship with the child as close and said that this child will miss him should he return to the Philippines.
The W family
The W family have three children namely a 12-year-old daughter, and two sons aged approximately four years and one year. The W family are part of the close friendship group including the M and A families. Their relationship with the applicant and his family is the same as the M and A family. The applicant’s relationship with each of the W family children is the same as the relationship he enjoys with the M and A family children.
The applicant’s wife in her statement dated 10 February 2022[20] said that the W family would visit and stay with them in Mount Gambier and that the applicant’s family would stay at the W family’s house when they regularly returned to Adelaide. She described the applicant as “beloved by the three children” who refer to the applicant as Uncle Garry.[21]
[20] Exhibit I, paragraph 7.
[21] Exhibit I, paragraph 9.
The Tribunal received a letter from Mr W dated 26 January 2022.[22] He has known the applicant since 2010 and a played competitive basketball with him. He referred to the applicant’s role within the basketball community and their close-knit family group. The applicant is regarded as a role model and a valued member of their community. He said “my children love to be around him as he acts like their grandpa. He has wits and gives the utmost guidance. His presence has always been a positive aura to us.”
[22] Exhibit D.
The applicant described his relationship with the three children of the W family as close and the same as the other children within their close network of friends to whom I have referred. He said he treats the W family children equally and they will miss him if he were to return to the Philippines.
The S family
The S family have two daughters aged 16 and 14 years and a son aged 3 years. During the applicant’s criminal proceedings in Adelaide the applicant and his wife would stay at the S family home. The applicant helped arrange the sons first birthday party. The family would also visit the applicant and his family in Mount Gambier.
The Tribunal received a letter from Mr and Mrs S who confirmed the applicant’s relationship with their son and family in similar terms as those other families to whom I have referred.[23]
[23] Exhibit A, attachment T, page 115.
The applicant said he has not met their son but has seen him on Facebook when messaging the parents.
The applicant said that when originally living in Adelaide he had a close relationship with the S family and that Mr and Mrs S were involved in basketball, however since being on home detention the two families and the children have not seen each other.
The applicant said in evidence that he would expect his return to the Philippines would not have any impact on these three children noting in particular that the daughters are now teenagers. I accept that evidence.
Mr C’s son
The applicant’s wife also referred to Mr C who was a work colleague of the applicant in Mount Gambier. She said that from time to time she and the applicant would see Mr C and his son in the local supermarket and the applicant would give the child gifts. She acknowledged the applicant had not spent a lot of time with the child and provided no details as to his approximate age.
Conclusion Primary Consideration 3
The Tribunal is satisfied that Mr C’s son is not a child to whom this Primary Consideration applies. The applicant played no role in the child’s life and saw him when shopping. Given the applicant’s very limited interaction with the child, that child will not be affected by the decision of the Tribunal.
Similarly having regard to the applicant’s evidence, the Tribunal is also satisfied that the S family’s children will not be affected by the decision of the Tribunal.
The Tribunal is satisfied that the applicant does have a close relationship with the children of those other close family friends to whom I have referred. The applicant played an important role as a highly regarded and loved person within that close knit group of Filipino families and undertook a level of responsibility in relation to those children. They will each be affected in the same or similar manner should the applicant returned to the Philippines. I am satisfied that they will be upset and distressed should that occur.
The Tribunal is also satisfied that the applicant played a significant parental role in caring for the child KS during the time the applicant and his family lived in Mount Gambier. Should the applicant return to the community and continue to reside in Adelaide he will no longer play the day-to-day parental role he did with KS when living in Mount Gambier. However, the Tribunal accepts that the applicant cared for KS as if he were his own child and that he will continue to be involved albeit to a lesser degree, as a father figure in KS’s life.
Having regard to the best interests of the minor children in Australia to whom I have referred, I am satisfied that Primary Consideration 3 ought to be given significant weight in favour of the applicant and the exercise of the discretion in s 501(1) of the Act not to refuse the applicant’s visa application.
Primary Consideration 4 - The Expectations of the Australian Community
In making the assessment of the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction[24].
[24] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The expectation of the Australian community is that the applicant ought to be refused his visa application. The question for the Tribunal is the weight to be given in favour of that expectation.
As I have said the applicant’s offending was not motivated by greed or benefit to himself or others, nor was his offending a conscious and deliberate attempt to disregard the laws of Australia. Having met and trusted Mr Conde, he engaged in the purchase and registration of firearms with the intention of delivering them to Mr Code when he was legally entitled to take possession of them. When threatened, and out of fear for himself and his family he delivered the firearms to Mr Conde contrary to the legislative scheme. He did not demonstrate the same level of culpability as those who engage in similar offences in blatant disregard for the legislative scheme, for self-benefit or the benefit of others, including those who are involved in criminal offending.

The applicant has also been a valuable member of the community, and in particular the Filipino community since arriving in Australia in 2008. Other than the subject offending he has never committed a criminal offence, nor is any road traffic offence alleged. The applicant’s parish priest in an undated letter refers to the applicant and his wife as “both very much involved with this community.”[25]
[25] Exhibit C.
The applicant has also contributed to the community through basketball as a player and a junior basketball coach and his employment particularly in the carer industry as a personal care worker and subsequently a community support personal care worker, providing respite for the elderly and children with disabilities.
The applicant was also a carer for 3 young boys who lost their parents. After their father’s death, their mother was diagnosed with cancer in 2011 and died in 2013 when the boys were young teenagers. The applicant was the boys’ carer during the period of their mother’s illness and formed a strong relationship with each of them. The youngest child, T, developed a passion for basketball and Filipino culture and food and was particularly close to the applicant. Following their mother’s passing the youngest child asked the applicant to adopt him. All three brothers subsequently moved to Melbourne and resided with their godparents. The three boys are now young adults and they maintain a strong relationship with the Applicant to date.
Conclusion Primary Consideration 4
The personal circumstances of the Applicant and the circumstances of his offending which arose from fear of threats of violence to himself and his family and his contribution to the Australian community are all factors which significantly reduce the weight to be given to this Primary Consideration and the exercise of the discretion to refuse the applicant’s visa application.
Were it not for those significant matters that operate in the applicant’s favour, this Primary Consideration would weigh heavily against the applicant. However, in the unique circumstances of this matter and the applicant’s personal circumstances, the expectations of the Australian community that the visa application be refused, weigh far less than would otherwise be the case.
Accordingly having regard to the evidence and all those matters to which I have referred, I am satisfied that Primary Consideration 4 ought to be given moderate weight in favour of the respondent and the exercise of the discretion in s 501(1) of the Act to refuse the applicant’s visa application.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the two relevant Other Considerations stipulated in sub-paragraphs (b), and (d).
Other Consideration (b) - Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The applicant arrived Australia in 2008 aged 33 years. He is now 47 years of age. He has lived a significant part of his life in the Philippines where he was an accomplished sportsman being a professional basketballer. He speaks and understands the language.
In Australia he has worked as a carer in both the aged care and care respite industries for the elderly and children with disabilities. Whilst the Mount Gambier he worked for a native plant wholesaler. In home detention he has taken on the role of cutting detainees hair and would like to obtain hairdressing qualifications if he is released back into the Australian community. Those skills are transferable should he return to the Philippines.
The applicant has three siblings each of whom have their own families. They each live in the Philippines in rented accommodation and earn the minimum wage. He said that they have their own personal problems and would not be able to assist him financially or with accommodation should he return to the Philippines. The applicant’s mother-in-law lives in the Philippines but she has emphysema and could not help or support him. He also has 8 nieces and nephews and 33 cousins still living in the Philippines. I note his mother lives in Israel.
The applicant wife said that he helps support his mother-in-law who lives in the Philippines, by sending her $300 – $400 per fortnight. Should he return to the Philippines she will lose that source of income which will cause her significant hardship and which in turn would severely impede her ability to help the applicant should he return to the Philippines. The applicant and his wife speak to his mother-in-law 1–2 times a week. He also maintains similar contact with some of his cousins but he does not want to bother them for support. He has told his siblings and some of his cousins about the offending and possible return to the Philippines, but none have offered assistance.
The applicant said that his family members would financially be unable to assist or provide him with accommodation. The applicant said that he provides financial support to his younger brother by sending $75 - $80 per fortnight and his elder sister to whom he sends $100 - $115 per month which he was paying out of his salary. He has no savings.
The applicant said that he was not sure if his wife would return to the Philippines. If she were to return within him and if she could gain employment as a nurse, she would only earn $500 – $600 per month. He said there was no Medicare and no financial support in the Philippines for the unemployed and there are a lot of homeless people in the Philippines.
The applicant said if he returned to the Philippines it will be very difficult to find employment. Employment discrimination is prevalent, and he has a very limited education and background.
Conclusion Other Consideration (b)
The Tribunal received into evidence the Department of Foreign Affairs and Trade Country Information Report of the Philippines dated 23 August 2021 (the DFAT Report).[26] The DFAT Report said the World Bank classifies the Philippines as a lower middle-income country. Poverty declined from 23.3% in 2015 to 16.6% in 2018, but that COVID-19 may have reversed some of those gains. During COVID lockdowns in 2020, unemployment increased to 17.7% before dropping by 10% by the end of the year. Rates of underemployment are very high and people without work are often forced into the informal sector which is usually unskilled and unregulated work. Casual work and contract work that does not attract the benefits of the Labour Code are common.[27]
[26] Exhibit J.
[27] Exhibit J, page 8, paragraphs 2.9 – 2.13.
Many Filipinos still struggle to access adequate healthcare particularly if they are poor or live in rural or remote areas.[28] Mental health care is available but limited.[29]
[28] Supra page 9, paragraph 2.17
[29] Supra page 9 paragraph 2.23
The DFAT Report does not make reference to employment discrimination as referred to by the applicant in his evidence. Having regard to the evidence before me I am not satisfied that employment discrimination does occur as suggested by the applicant. Nonetheless I accept that given the high level of unemployment and poverty, and the applicant will likely have difficulty finding employment in the immediate to medium future following his return to the Philippines. He does have Certificate 111 qualification in the carer industry but there is no evidence before me about whether or not that certificate is recognised in the Philippines.
I do not accept that the applicant’s siblings and extended family will provide no support for him should he return to the Philippines. The applicant said and the Tribunal accepts that if he were to return to the Philippines, he will be overwhelmed. Leaving his family and close friendships in Australia will have a significant impact upon him and likely impact upon his mental health and well-being. The return to the Philippines will be a struggle for him.
The Tribunal is satisfied that the applicant will face significant difficulties and challenges upon his return to the Philippines. Nonetheless, he has some skills as evidenced by his employment and as a professional basketballer and coach that should assist him in finding some employment in the Philippines.
Having regard to those matters to which I have referred and in particular the immediate to medium term difficulties he will face should he return to the Philippines, I am satisfied that this Other Consideration ought to weigh moderately in favour of the applicant in the exercise of the discretion in s 501(1) of the Act not to refuse the applicant’s visa application.
Other Consideration (d) - Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must have reflect the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The respondent submitted that there was no evidence enlivening consideration of paragraph 9.4.2(b). I agree.
The strength, nature and duration of ties to Australia
The Direction informs the Tribunal about those matters to which the Tribunal must have namely:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen 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.
The delegate, in the statement of reasons for refusal of a visa, noted the applicant’s immediate family members in Australia were his wife, two sons and daughter-in-law.[30] The respondent urged the Tribunal not to include the daughter-in-law within the classification of immediate family member in paragraphs 9.4.1.(1). It was submitted that she fell within the category of persons included in paragraph 9.4.1(2). The respondent did not expand upon that submission.
[30] Exhibit A, document 3, pages 8-18.
The meaning of ‘immediate family member’ is not defined in the Act. Other Commonwealth legislation differently defines the term ‘immediate family member’.[31] The Tribunal has considered the term in VWLL and Minister for Immigration and Citizenship, Re (2012) 138 ALD 626. The Tribunal said at [120] that:
“the applicant’s immediate family are his 2 daughters and his former de facto wife LTP who are Australian citizens. His nieces, SLK and H, JS and JD, the partners of SLK and EKD, his former brother-in-law JK and his friend BB are all Australian citizens. His sister MD is also a person who has a right to remain in Australia indefinitely.”
[31] See for example Veterans Entitlements Act 1986 (Cth) and Fair Work Act 2009 (Cth).
The Tribunal in ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration), Re [2021] AATA 1738 said at [214] that:
“the applicant’s sister-in-law C, gave evidence that R is very close to the Applicant, that he enjoys visiting the Applicant and that he talks about the Applicant frequently. The applicant’s sister-in-law M also has a young daughter, AM, who was born during the applicant’s most recent term of imprisonment and so he has not been able to spend any time in the community with her. The Tribunal finds that if the applicant is removed from Australia, his nephews in particular may suffer emotional detriment if they are unable to have their uncle personally involved in their lives.”
The Tribunal said at [215] that:
“It is evident that the applicant’s family ties to Australia are very strong. All the applicant’s immediate family reside in Australia. The evidence given by various family members, including the evidence outlined above, indicates that he is loved and respected by his family members as a loving partner, father, brother- in law and uncle, and that his family members rely on him for support.”
In Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration), Re [2021] AATA 1869 the Tribunal said at [171] that the applicant had three members of his immediate family residing in Australia namely his daughter, son-in-law (daughter’s husband), and his grandchild. In footnote 94 of the decision, the Tribunal explained, “out of an abundance of caution, I note my specific finding that the Applicant’s son-in-law is a member of his “immediate family.”
The decisions indicate that the Tribunal has given a broad meaning to the term “immediate family” but in my view the nature of the relationship between the applicant and that person must be considered in determining whether he or she is a member of an applicant’s “immediate family”.
It is necessary to consider the nature of the familial relationship between the applicant and his daughter-in-law, to determine, as a matter of fact, whether the daughter-in-law is properly regarded as an immediate family member. The relationship must be something more than the mere consequence of the marriage. It is not a transient relationship. It must be a relationship in which the daughter-in-law has a close and loving relationship with the applicant and plays an important role in his life and that of his family members. Each matter will turn on its own facts.
The applicant’s daughter-in-law Ms CA provided a statement dated 23 July 2020[32] and gave oral evidence. She is and Australian citizen, 28 years of age, and is a registered nurse and midwife. She is married to the applicant’s son Mr BC who is 26 years of age. Mr BC is a permanent resident and currently applying for Australian citizenship.
[32] Exhibit A, attachment P, pages 105-107.
Ms CA has known the applicant for approximately nine years and is aware of his criminal conviction. She described her family and the applicant and his family as very close friends. Her parents visited the applicant and his wife when they were in Mount Gambier including when the applicant was serving his sentence on home detention. Her parents support the applicant in this application.
Ms CA described the applicant as her second father. Her natural father spends a large part of his working life away from home and so she has looked to the applicant for support. Her husband and the applicant are very close. She said her husband regard the applicant as a father, brother, and best friend who provides emotional outlet, guidance, and support to her husband.
Ms CA and her husband are planning to start their own family and they will be looking to the applicant to be very much part of their extended family as a grandfather, and a support person to them in the future.
She said that if the applicant returned to the Philippines, this would mean the loss of her second father. Ms CA’s evidence was unchallenged.
The applicant’s wife also gave evidence about the close relationship she and her husband enjoy with Ms CA.
I am satisfied that the relationship between Ms CA and the applicant is a very close and loving relationship in which both support and care for each other together with other members of their family. It is far more than a relationship merely born by marriage and demonstrates that the applicant and Ms CA play an important part in their respective day-to-day lives including emotional support to one another. Having regard to the nature of their relationship it is appropriate that she be regarded as an immediate family member.
The applicant’s wife
Mrs C provided a statement dated 23 July 2020[33], 10 February 2022[34], and gave oral evidence. She is now 44 years of age and has known the applicant since she was 15 and the applicant was 18 years of age. They have been married for 26 years. She is the mother of their two children. She described herself as dependent emotionally, physically and financially on the applicant who she describes as a very good husband and father. She said that her aunt financially supported their family so that they could migrate to Australia on a permanent basis.
[33] Exhibit A, attachment N, pages 93-95.
[34] Exhibit I.
Mrs C said that their oldest son Mr BC is particularly close to the applicant. They share the same passion for basketball. Mr BC confides with the applicant in personal issues, and it will be difficult for him not to have his father present. If he returned to the Philippines, the applicant and Mr BC will still maintain a relationship, but it will suffer because the applicant will not be close by to his family, which will be difficult for everybody.
Mrs C detailed the close relationship the applicant has with their daughter-in-law whom she described as always with them and that they are a close family. The applicant provides the daughter-in-law with support.
Mrs C referred to her aunt who was her last remaining relative other than her mother. She is close to the applicant. It is intended that the applicant, given his experience as a carer, and Mrs C, will care for her aunt in her old age. Mrs C currently holds the aunt’s power of attorney.
Mr BC
Mr BC provided a statement dated 23 July 2020.[35] He is a permanent resident and was “affected immensely” by the applicant’s visa refusal. He described a close and loving family and the important role the applicant plays in his life. He also confirmed he and his wife’s plans to start a family.
[35] Exhibit A, attachment O, pages 97-99.
Mr BC declared his father to be a good role model and spoke glowingly about him, that has no prior convictions and does not represent a threat to the Australian community.
Other character evidence
The Tribunal received numerous letters of support for the applicant all of whom described him in very glowing terms, as a decent, gentle, and honest gentleman who is held in the highest regard. He is also an active member of his church and the church community. Letters of support were received from close friends within the Filipino community. The statements attest to the applicant involvement in basketball as an athlete and coach, in particular with youths. A character reference from his former employer in Mt Gambier also spoke glowingly of him as an employee who enjoyed a good relationship with his co-workers.[36]
[36] Exhibit A, attachment Q, page 111.
Conclusion Other Consideration (d)
The applicant arrived in Australia in 2008 and has since remained in Australia to date. He has made a valued contribution to the Australian community, particularly in caring for the aged and disabled, and his involvement in the Filipino community, the church and his commitment to basketball including as a coach.

The applicant’s immediate family all reside in Australia and will likely continue to do so. His wife’s aunt is also a person with whom the applicant and his family enjoy a close and loving relationship and is someone whom it is intended the applicant will provide carer support in her old age. His daughter-in-law is an Australian citizen, and other members of his family are permanent residents, and his eldest son has applied to become an Australian citizen.
The applicant has extensive network of social links with the Australian Filipino community.
I am satisfied that Other Consideration (d) should be given significant weight in favour of the applicant in the exercise of the discretion in s 501(1) of the Act not to refuse the applicant’s visa application.
CONCLUSION
Section 501(1) of the Act stipulates two conditions precedent to the exercise of the discretion to refuse the Applicant’s visa. It must be considered, firstly, whether or not the Applicant passes the character test and, secondly, whether the discretion to refuse the visa should be exercised.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether the discretion in s 501(1) of the Act should be exercised to refuse the visa, the Tribunal has had regard to those considerations referred to in the Direction.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – weighs mediumly in favour of the respondent to refuse the applicant’s visa application;
(b)Primary Consideration 2 – Family violence – is neutral;
(c)Primary Consideration 3 – Best interests of minor children – weighs heavily in favour of the applicant not to refuse the applicant’s visa application;
(d)Primary Consideration 4 – Expectations of the Australian community – weighs moderately in favour of the respondent to refuse the applicant’s visa application;
(e)Other Consideration (a) – International non-refoulement obligations – is neutral;
(f)Other Consideration (b) – Extent of impediments if removed – weighs moderately in favour of the applicant not to refuse the applicant’s visa application;
(g)Other Consideration (c) – Impact on victims – is neutral; and
(h)Other Consideration (d) – Links to the Australian community – subsection (i) weighs heavily in favour of the applicant not to refuse the applicant’s visa application. Subsection (ii) is to be given neutral weight.
The combined weight of Primary Consideration 3 and Other Consideration (b) and (d)(i) is such that they outweigh the weight attributed to Primary Considerations 1 and 4.
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh against the exercise of the discretion in s 501(1) of the Act to refuse to grant the applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to refuse the applicant’s visa.
DECISION
For the reasons outlined above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 1 October 2021 refusing the applicant’s Regional Sponsored (Provisional) (Class SP) visa and substitutes a decision that the applicant should not be refused a visa pursuant to section 501(1) of the Act.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

......................[Sgnd].........................
Associate

Dated: 15 March 2022

Dates of hearing:

9, 16 & 18 February 2022

Advocate for the Applicant:

Luke Edwards, Work Visa Lawyers

Advocate for the Respondent:

Cameron Retallick, Australian Government Solicitor

[2022] AATA 511

1 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Remedies

Dates of hearing:	9, 16 & 18 February 2022
Advocate for the Applicant:	Luke Edwards, Work Visa Lawyers
Advocate for the Respondent:	Cameron Retallick, Australian Government Solicitor