Dass and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Dass and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2398 (20 June 2024)
Division:GENERAL DIVISION
File Number(s):2024/2284
Re:Rajnesh Rohit Dass
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date of decision: 20 June 2024
Date of Reasons: 11 July 2024
Place:Canberra

The decision under review is affirmed.
..................................[SGD]......................................
Senior Member O’Donovan
CATCHWORDS
MIGRATION – mandatory cancellation of the applicant’s visa – applicant is a citizen of Fiji – family violence offences – drug and property offences – driving offences – failure to pass character test – whether there is another reason to revoke the cancellation – Direction No 99 – protection of the Australian Community – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – best interests of minor children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 501, 501(3A), 501CA
SECONDARY MATERIALS
Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member O'Donovan
11 July 2024
INTRODUCTION

The applicant is a citizen of Fiji. He arrived in Australia on 28 June 2002 at the age of 25. On 24 August 2009 he was granted a Five Year Resident Return Visa (the Visa).
The applicant began offending soon after his arrival in Australia. His offending consists of a mix of driving offences, drug and property offences and family violence offences.
On 18 May 2016 the applicant was sentenced to 12 months imprisonment as a result of offences committed on 25 January 2016. His visa was cancelled under section 501(3A) of the Migration Act 1958 (the Act). The applicant made representations seeking revocation of the visa cancellation and on 1 September 2017 his visa was restored to him.
On 21 January 2019 the applicant’s visa was again cancelled following a further lengthy prison sentence being imposed. The visa cancellation was revoked on 11 September 2019.
On 17 February 2023 the applicant was sentenced to 16 months imprisonment relating to offences committed on 19 May 2022. On 4 April 2023 the Applicant was notified that his visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test as a result of being sentenced to a term of imprisonment for a period of 12 months or more (s 501(7)(c)). He sought to have the visa cancellation revoked. On 8 April 2024 a delegate of the Minister decided not to revoke the mandatory cancellation of the applicant’s visa. On 16 April 2024 the applicant applied to the Tribunal for review of the delegate’s decision.
It is not in dispute that the applicant fails the character test. The only issue to be determined is whether there is another reason to revoke the cancellation. For the reasons which follow I am not satisfied that there is another reason to revoke the visa cancellation.
In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in any relevant ministerial direction issued under section 499 of the Act. The relevant direction in this matter is Direction 99, which was executed on 23 January 2023 and commenced on 3 March 2023 (the Direction). It has now been replaced by Ministerial Direction 110 which commenced on 21 June 2024. As this decision was made on 20 June 2024, Ministerial Direction 99 remains the relevant direction and has been applied.
Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 of the Direction when I am determining whether there is another reason why the cancellation should be revoked.
The Direction is divided into 'Primary' and 'Other' considerations. Primary considerations should generally be given greater weight than the other considerations (but there is scope to weight 'Other' considerations more highly in appropriate circumstances).
The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether conduct engaged in constitutes family violence;
(c)The strength, nature and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
The other considerations are:
(a)The legal consequences of the decision;
(b)The extent of impediments to the applicant establishing and maintaining basic living standards if removed;
(c)The impact on victims;
(d)The impact on Australian business interests.
I am also required to give consideration to any other matters advanced by the applicant.
Having considered each of the considerations and weighed them appropriately, I am not satisfied that there is another reason why the cancellation decision should be revoked. Consequently, the visa cancellation decision stands.
Evidence
The evidence before me consists of the following documents:
(a)G-Documents filed with the Tribunal on 5 July 2024 (G-Documents);
(b)Statement of the Applicant, dated 27 May 2024 (Exhibit A13);
(c)Statement of the applicant’s wife, Shirlmindar Dass dated 27 May 2024 (Exhibit A10);
(d)Statement of the applicant’s older daughter dated 27 May 2024 (Exhibit A16),
(e)Statement of Ravinesh Dass, undated (Exhibit A9);
(f)Statement of Chandar Mati, undated (Exhibit A11);
(g)Statement of Ronesh Dass, undated (Exhibit A14);
(h)Statement of Sam dated 29 April 2024 (Exhibit A15);
(i)Report of Consultant Psychologist Tim Watson-Munro dated 27 May 2024 (Exhibit A17);
(j)The following certificates concerning courses engaged in by Mr Dass:
(i)Remand Addictions (Exhibit A1);
(ii)EQUIPS Foundation Program (Exhibit A2);
(iii)Rolling Equips Foundation (Exhibit A3);
(iv)NEXUS: planning your release (Exhibit A4);
(v)Short Sentence Intensive Program (Exhibit A5);
(vi)Drug and Alcohol Abuse 101 (Exhibit A6);
(vii)Domestic Violence Awareness (Exhibit A7);
(viii)Drug and Alcohol Abuse 101 (Exhibit A8);
(k)Service Agreement Form between Odyssey House and Rajnesh Dass dated 13 June 2024 (Exhibit A12);
(l)Identified documents from the Respondent’s Tender Bundle (Exhibit R1);
(m)Extracts from the clinical records of International Health and Medical Services (Exhibit R2)
In addition to the exhibits, the following witnesses formally adopted their earlier statements, gave some additional evidence and were subjected to cross examination.
(a)The Applicant;
(b)Mr Tim Watson-Munro, Psychologist;
(c)Ms Shirlmindar Dass, the Applicant’s wife;
(d)Ms Chandar Mati, the Applicant’s mother;
(e)Mr Ravinesh Dass, the Applicant’s brother.
General comments on the reliability of the evidence
I am satisfied that the applicant was a reliable witness. He rarely volunteered all of the facts which were relevant to consideration of his position, but in cross examination he gave considered answers and made appropriate concessions including on matters that were extremely adverse to his application. He was however less than forthcoming in the pre-hearing process both in his recounting of the facts in his original request to have the cancellation revoked and when recounting his history to his psychologist Mr Watson-Munro.
The remainder of the lay witnesses were in broad terms honest witnesses, although all had a tendency to be optimistic about the applicant’s prospects for reform which were not consistent with the applicant’s past behaviour.
The applicant’s psychologist Mr Watson-Munro also made appropriate concessions when confronted with aspects of the applicant’s history which were inconsistent with what had been reported to him by the applicant.
Findings of Fact
The following represent my findings of fact. The applicant conceded in cross-examination of all key aspects of these findings.
In setting out my findings I have drawn heavily from the respondent’s statement of facts issues and contentions. I would not normally borrow so heavily from the text of a document prepared by of one of the parties, but in this case I have been delayed in providing reasons by an illness. In order to get the reasons to the applicant within a reasonable time I have adopted this expedient.
The applicant was born in Fiji on 22 May 1977 and was the eldest of three boys. He was educated in Fiji until the age of 19 years. He was unemployed for most of his time in Fiji after finishing school. He emigrated to Australia in 2002 and has lived here ever since.
The rest of his immediate family emigrated to Australia in and around that time. The applicant married in 2005 and remains married. He has two daughters aged 16 and 11. His father, who was living in Australia, died in 2021.
The applicant’s non-compliance with Australian law began soon after his arrival in Australia. On 15 October 2003, the Applicant was stopped by police at Auburn Railway Station after being identified by a drug detection dog. The Applicant admitted he was in possession of marijuana. The police confiscated the marijuana and cautioned the Applicant.
On 29 April 2008, the Applicant assaulted his wife. When police attended, the Applicant's wife claimed to have been mentally and physically assaulted on several occasions in the past by the applicant but indicated that she had not reported these incidents to police. The incident which had prompted her to call the police was described as follows. The Applicant and his wife were involved in a verbal argument triggered by the applicant’s wife opening a window in their unit. This degenerated further and the Applicant had thrown food items around the kitchen and at his wife. When his wife went upstairs to check on his crying daughter, the Applicant followed her and stated, "You bitch, fuck you" and then slapped her with an open hand 3 consecutive times. The Applicant then spat towards his wife but missed her. The Applicant then walked downstairs to exit and punch a nearby laundry door causing damage. Later, when being interviewed by police, the Applicant stated words to the effect of, "Yes I may have slightly slapped her on the cheek a couple of times but not hard I did not assault her badly in any way.” The applicant now concedes that he did in fact slap her with an open hand three times as described by his wife to police. He also accepts that this was not the first time he had assaulted her.
As a result of this incident, the Applicant's wife applied for a provisional Apprehended Violence Order (AVO) for a period of 12 months. The Applicant's wife and daughter were listed as protected persons. Final orders were made on 9 May 2008.
On 9 May 2009, the Applicant was sentenced to a 12-month good behaviour bond.
On 6 February 2010, the police attended the Applicant's property due to a domestic disturbance. His wife contacted police alleging that the Applicant punched her in the back. When the police arrived, the Applicant's wife did not cooperate. The applicant however conceded at the hearing of this matter that the original report of the assault was accurate.
On 17 February 2010, the Applicant's drivers' licence was suspended due to speeding offences. On 26 March 2010, a further final AVO was made against the Applicant for a period of 12 months. His wife and daughter were listed as protected persons.
On 29 April 2010, the Applicant was issued a Field Court Attendance Notice for driving on an expired licence.
On 25 June 2010, the Applicant's drivers' licence was again suspended due to speeding offences.
On 25 May 2011, the Applicant swerved his vehicle crossing the centre lane dividing marker on the road, placing approximately half the vehicle into the oncoming traffic lanes. Police observed the vehicle driving through a red light. The vehicle approached an RBT site and failed to slow down, instead moving into an outer lane and maintaining speed. A police officer attempted to make the Applicant aware of the RBT site, however was 'forced to take evasive action and move left to avoid being struck by the vehicle as it passed'. When stopped by police, the Applicant underwent breath analysis which returned a 0.092g of alcohol in 2190 litres of breath. The Applicant was charged with failing to stop at a red light, disobeying a request to stop for a breath test, was found to be driving while consuming alcohol, and had a mid-range prescribed concentration of alcohol (PCA) of between 0.08 and 0.149 g/100ml.
On 8 September 2011, the Applicant was sentenced to a 12-month good behaviour bond, and his licence was disqualified for 9 months.
On 8 February 2013, the Applicant's driver's licence was suspended because he did not keep left and stopped in a bus zone.
On 29 June 2014, the Applicant was again found to be driving while consuming alcohol with special category PCA of between 0.02 and 0.049g/100ml. His licence was suspended for 10 months and he was ordered to attend an Alcohol Interlock Program for 10 months.
In 2014 the applicant began experimenting with the drug ice. To this point, despite his criminal offending, he had been able to hold down a job at the retailer Harris Farm. Once he became addicted to ice however his behaviour deteriorated. He ceased working at Harris Farm in 2015 and apart from working at another fresh produce firm for a very short period, he has not worked since.
On 26 February 2015, the Applicant was found to be driving on a disqualified licence with a special category PCA of between 0.02 and 0.049g/100ml. His licence was disqualified for a period of 6 months. He was again ordered to attend an Alcohol Interlock Program for 12 months.
Less than 2 months later, on 23 April 2015, the Applicant was again found to be driving on a disqualified licence. He was sentenced to 6 months imprisonment and 200 hours of community service.
On 6 July 2015, the Applicant was disqualified from driving for a period of 2 years as a result of the drink driving offences.
Within 2 months of his release from prison, on 12 November 2015, the Applicant entered his wife's bedroom and used abusive language towards her. He punched his wife 4-5 times with a closed fist on the back of her arms, and then punched her 2 times with a closed fist on the left side of her head. The wife's crying woke the children sleeping next to her who started screaming. The applicant continued to punch his wife 2-3 times in front of the children. When questioned by the police, the Applicant responded with words to the effect of, "Yeah I did it, but she blames me for everything…".
Later in the day of 12 November 2015, after he was released, the Applicant returned to his wife’s property and demanded a divorce. The Applicant shouted at his younger daughter "Fuck off, I'm not your papa any more mother fucker bitch".
As a result of this incident, on 4 December 2015, a final AVO was issued by the Local Court for a period of 12 months which included the applicant’s wife and his children as protected persons.
On 22 November 2015, the Applicant was found in the possession of prohibited drugs and possession of equipment for administering prohibited drugs.
On 22 December 2015, the Applicant was observed by police at a train station to proceed through the ticket barrier without a valid ticket. Police searched the Applicant's bag and found illicit substances (methamphetamine and marijuana) and drug paraphernalia.
On 10 January 2016, the Applicant was found to be in possession of prohibited drugs, possession of equipment for administering prohibited drugs, and possession of goods suspected of being stolen. He was also riding a bicycle without a helmet.
On 25 January 2016, the Applicant stole 4 Samsung Galaxy S5 mobile phones from Target. The Applicant was charged with stealing items worth between $2000 and $5000.
On 1 February 2016, the Applicant was observed taking chocolate bars, a screwdriver, trunks, and joggers from Kmart.
On 2 February 2016, the Applicant failed to appear in accordance with his bail acknowledgment related to the offences committed on 12 November 2015.
On 3 February 2016, in relation to the family violence offence committed on 12 November 2015, the Applicant was sentenced to imprisonment for a period of 8 months, which was suspended on the basis that the Applicant obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation.
On the night of the 2 March or morning of 3 March 2016, the Applicant broke into a house and stole items, namely an Atlantis Adventure bicycle.
On 31 March 2016, the Applicant was found to be in possession of goods suspected of being stolen, namely a laptop. On 1 April 2016, the Applicant was found in possession of housebreaking implements and prohibited drugs. The Applicant was imprisoned for a period of 12 months, with a 6-month non-parole period.
On 27 April 2016, the Applicant was sentenced to 1 month imprisonment as a result of the offences committed on 10 January 2016.
On 18 May 2016, the Applicant was sentenced to 12 months imprisonment as a result of the offences committed on 25 January 2016. The Applicant was also convicted with no other penalty in respect of the offences of 2-3 March 2016.
On 4 October 2016, he was sentenced to 18 months imprisonment with a non-parole period of 8 months for the offences of 2-3 March 2016. On 17 January 2018, the Applicant was found to be in possession of goods suspected of being stolen; that being a Merida Crossways 500 hybrid/commuter bicycle. Initially, the Applicant told police that he had purchased the bicycle from a bike shop for $800. When the police advised the Applicant that the shop did not sell that type of bicycle, the Applicant then stated that he bought it from a website. When asked to provide a receipt, the Applicant then advised that he bought it from a person "at the houso apartments in Parramatta".
On 28 February 2018, the Applicant pleaded 'not guilty' to the offences of 17 January 2018 and submitted that he had purchased the bike from someone in the park. The Applicant stated that he had turned his life around and no longer took any kinds of drugs nor committed any crimes. This was not in fact the case. On 1 March 2018, he was fined $1000.
On 12 March 2018, the Applicant broke into a garage of a unit, closed the garage door, and was locked in. He attempted to break out of the garage which resulted in damage to the garage door. Residents of the unit contacted the police. The police spoke to the Applicant through the garage door and the Applicant reported that he had entered the garage to sleep. When the police opened the garage door, they saw an Avanti Mountain Bike. The Applicant denied knowledge and ownership. The residents also denied ownership. Two mobile phones were also located. The Applicant was charged with breaking and entering, destroying or damaging property, and being found to be in the possession of goods suspected of being stolen.
On 23 March 2018, the Applicant's wife spoke with police regarding a verbal altercation with the Applicant regarding finances and the children. The Applicant reportedly accused his wife of having an affair and called her a "cunt" and a "cocksucker".
On 15 April 2018, the Applicant was found to be in possession of goods suspected of being stolen, namely a Giant Mountain Bike. The Applicant initially told police officers that the bicycle belonged to his brother, but when pressed about this claim, the Applicant told the police that he had "borrowed it off a mate and had to give it back tomorrow". He was convicted with no other penalty.
On 22 April 2018, the Applicant and his wife were involved in a verbal altercation. The police were called to the property. On 11 May 2018, the Applicant attended his wife's home and requested entry, which was refused. Before the police arrived, the Applicant had smashed his mobile phone on the driveway and rode off on his bike.

On 21 May 2018, the Applicant entered a building or land and committed an indictable offence. The Applicant entered an underground carpark of a block of units and was observed on CCTV looking into garages and storage areas belonging to tenants. The Applicant was seen looking through the tray of a white Toyota Hilux. On 4 September 2018, he was sentenced to 18 months imprisonment with an 8-month non-parole period.
On 4 September 2018, in respect of the offences committed on 12 March 2018, the Applicant was sentenced to 18 months imprisonment with a non-parole period.
On 12 December 2019, the Applicant argued with his wife because he was using his children's straws for his illicit drug use. The Applicant punched a door "numerous times with both fists". On 13 December 2019, the Applicant was verbally abusive towards his wife on the phone, including threats that he would kill her. On 15 December 2019, he stalked his wife with the intention of causing fear of physical or mental harm. He made threats that he would have someone rob her house that night. As a result of these incidents, on 17 December 2019, a provisional AVO was issued which included the applicant’s wife and his children as protected persons. The applicant's wife requested the Court make the final order for a period of 2 years.
On 8 January 2020, the Applicant entered land without a lawful excuse. The Applicant attempted to enter a home, but a witness intervened, and the Applicant fled the property.
On 11 January 2020, the Applicant was stopped by police and searched. About a metre from the Applicant was his wallet and 1.1g of a white crystal substance, believed to be methamphetamine. The Applicant claimed that he must have dropped his wallet and the wind blew the substance near to it.
On 3 February 2020, the Applicant breached the AVO by returning to his wife's home.
When refused entry, the Applicant became aggressive, swore and yelled at his wife, and kicked over pot plants.
On 4 May 2020, the Applicant was released on bail with instructions that the Applicant must comply with the AVO in force.
Between 5 and 12 September 2020, the Applicant broke into a house and stole items.
On 14 February 2021, the police attended the Applicant's house regarding a verbal altercation with his wife. During the altercation, the Applicant pushed over pot plants causing one of them to fall and break.
On 23 December 2021, in respect to the incidents in January and September 2020, the Applicant was sentenced with an intensive correction order of 13 months, including supervision by Community Corrections Services, and 200 hours of community service.
On 23 February 2022, the Applicant destroyed a security door at his wife's house in an attempt to enter the property without his wife's consent. The Applicant received a $400 fine for this offence. As a result of this incident, on 24 February 2022, a final AVO was issued by the Local Court for a period of 2 years which included the applicant’s wife as a protected person.
On 19 May 2022, the Applicant was arrested for breaching his AVO.
On 27 June 2022, the Applicant broke into a garage and took a number of items with an estimated value of $5000.
On 30 June 2022, the Applicant was arrested for the incident of 27 June 2022, as well as for breaching his bail conditions (not reporting). When he was arrested, police found a gold watch in his possession, which the Applicant claimed was his. The Applicant was also found to be in possession of illicit drugs. The Applicant denied stealing property.
On 24 August 2022, the Applicant was sentenced to 16 months imprisonment for the incidents on 27 June 2022. Consistent with the Drug Court Act 1998 (NSW), a non-parole period was not specified and the sentence was suspended to allow the Applicant an opportunity to participate in a program. On 9 January 2023, the program was terminated by the Court.
On 17 February 2023, the Applicant's sentence of 16 months imprisonment was reimposed, with a non-parole period of 9 months related to the offences on 19 May 2022.
When the applicant completed that sentence he was taken into immigration detention and is currently detained at Villawood.
Family situation
The applicant is married with two daughters. He also has two brothers who live in Australia and have family here who he is close to. His mother also lives in Australia. He remains in close daily contact with his wife and regularly contacts his children via phone and video calls. His wife and daughters have visited him while he has been in detention.
If the applicant is deported to Fiji there is no plan for any member of his family to join him in Fiji. He does not have any family or friends in Fiji.
Friends
Apart from the applicant’s family he does not appear to have much in the way of links into the community. He has not worked for almost ten years and it appears that the people he associates with outside of his family are involved in the use of illicit drugs.
The Tribunal does however have evidence from a witness identified only as ‘Sam’ who describes himself as a long-time friend. He is aware of the applicant’s offending but is willing to give the applicant work in his auto-repair business if the applicant is released into the community.
Vocational history and living arrangements prior to entering prison
Between 2002 and 2015 the applicant was employed continuously with the retailer Harris Farm. He continued with them until his ice addiction made him unreliable as an employee. His employment was terminated in 2015. He had a brief stint with another fresh produce company soon after but has been unemployed since that period of employment finished.
The applicant has lived with his family for most of the time he lived in Australia despite being the subject of apprehended violence orders in 2008, 2010 and 2015. None of those orders prevented co-habitation.
After 2016, the applicant spent less time living with his wife and children as a consequence of incarceration, periods in immigration detention and restrictions imposed by apprehended violence orders.
The applicant’s health and medical evidence
The applicant was seen by psychologist Tim Watson-Munro on 20 May 2024.
He identified the applicant as suffering from depression and anxiety associated with his potential deportation and the impact this will have on his family.
The applicant was not frank with his psychologist about aspects of his history including his long term use of marijuana.
The applicant did however admit to using ice in immigration detention. He indicated that he had been clean since March 2024. This has been confirmed with clean urine screens taken since then.
Mr Watson-Munro assessed his risk of reoffending as currently trending from Moderate to Low. When questioned at the hearing however Mr Watson-Munro accepted that if the applicant returned to the use of ice it was very likely that he would re-offend.
Dishonesty on incoming passenger cards
The applicant accepted that he had made a false declaration when re-entering Australia after visiting Fiji. The false declaration was made on 18 September 2009 when the applicant responded ‘no’ to the question whether he had any criminal convictions. The explanation offered by the applicant for providing false declarations was that he did not appreciate the importance of the documents at the time.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
In considering the protection of the Australian community I am required to 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. I am required to have particular regard to the principle that remaining in Australia (for a non-citizen) is a privilege which is conferred on the basis that they will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I also need to have regard to:
(a)The nature and seriousness of the applicant’s conduct to date; and
(b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard as specified in paragraphs 8.1.1(1)(a)-(h).
When these factors are applied to the applicant’s circumstances, the result is that I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian community. His crimes include crimes of family violence. He has engaged in violent and threatening behaviour which caused his spouse to be sufficiently fearful that she has called the police or sought an apprehended violence order. The violent crimes he has committed, because they have been committed against a woman (his spouse) are, for that additional reason, treated as very serious.
The applicant has been a frequent offender since arriving in Australia and the frequency of his crimes has increased since he began taking ice and lost his job in 2015. The long periods he has spent in custody have reduced that frequency to a degree, but whenever the applicant is released into the community he has resumed offending very soon after. The seriousness of the offending has not however increased. The applicant’s most serious offending involves physical assaults on his wife which occurred some time ago.
The cumulative effect of the applicant’s offending reveals a lack of capacity to comply with the law. Over time the offending has created risks for road users, deprived people of their property and shocked and scared his family.
The applicant has also provided false or misleading information to the Department by stating that he did not have a criminal record on his incoming passenger cards in 2009 and 2012.
The applicant’s offending is very serious.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must 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 resulting harm caused is so serious that any risk that it may be repeated may be unacceptable. The applicant’s criminality is not conduct of that kind, but the risks posed if the applicant’s conduct is repeated are serious.
Nature of the harm to individuals or the community
The nature of the harm caused by the applicant’s offending falls into three categories. First, driving offences usually associated with the use of alcohol or illicit drugs. Second, property crimes usually motivated by the need to obtain money to buy drugs and third, violent and threatening behaviour towards his wife and children which, in the last decade, appears to be linked to his drug use.
If the applicant engaged in further criminal or serious conduct the harm to the community is likely to fall into three categories. First, there is potential for harm to other road users. Serious accidents involving the killing or maiming of other road users are potential harms if the applicant’s criminal driving behaviour is repeated. Second, it is likely that members of the community would be harmed by having their property stolen. Finally, the applicant’s wife and children are likely to be subject to threats and intimidation if the applicant resumes criminal offending.
Likelihood of the applicant engaging in further criminal conduct
The applicant, both in his original request for revocation and while pursuing his application in the Tribunal has expressed remorse for his past conduct and a determination to behave differently in the future.
He accepts that in the past, on multiple occasions, he has indicated to courts and other officials, that he was very sorry for the things he had done and promised not to engage in similar anti-social behaviour in the future, but, despite these protestations of reform, he continued to use drugs, committed crimes to fund that drug use and engaged in abusive and threatening behaviour towards his wife.
The applicant’s representative accepted that it was appropriate to ask whether the applicant’s current claims about his future intentions and conduct can be treated as reliable in light of this history. It was nonetheless submitted on behalf of the applicant that the claims should be given more credence on this occasion despite the failed promises of the past.
The applicant’s representative drew to the Tribunal’s attention a 2016 pre-sentence report concerning the applicant which noted the applicant’s lack of insight into his offending and how he minimised his domestic violence offending. He contrasted that with the attitude of the applicant revealed during cross-examination in the current matter where the applicant admitted to all of his criminal and serious conduct and took responsibility for it. The submission that was put, was that the applicant now has the necessary insight and determination to behave differently if he is released into the community. I should accept the assessment of his family, and his wife in particular, that the applicant has turned a corner and will resume employment and support his family in the future. Further, the applicant has been assessed by psychologist Mr Watson-Munro. As noted above, Mr Watson-Munro in his written report assessed the applicant’s risk of re-offending as trending from moderate to low.
In these circumstances I should proceed on the basis that there are good prospects that there will be no further offending if the applicant is released into the community.
I do not accept that submission. I accept that the applicant’s attitude to his offending has improved since 2016, and during cross-examination he made no attempt at all to minimise his behaviour. He accepted the very worst of the behaviour which had been recorded by courts and police about him and did not seek to blame anyone else for his behaviour.
That however in my assessment is not a sufficient basis, even when combined with the assessment of Mr Watson Munro, for proceeding on the basis that there is a low risk of the applicant re-offending.
First, Mr Watson-Munro when giving oral evidence accepted that if the applicant returned to the use of ice then it was very likely that the applicant would re-offend.
That being the case, a key question which needs to be addressed is whether the applicant is likely to resume using ice if he is released again into the community. If he is, then crimes of the kind he has committed over the last ten years are likely to be repeated.
In my assessment it is likely that he will resume using ice. There are a number of matters which lead me to that conclusion. First, ice is a highly addictive drug and despite having many incentives and opportunities to cease its use in the past, the applicant has been unable to resist returning to it. Second, the applicant has used ice in immigration detention this year. This calls into question the assessment of sentencing judge in 2023 that he had reasonable prospects of rehabilitation. Despite having significant incentives to remain clean, and living in a relatively controlled detention environment, the applicant has been unable to resist using the drug. While I accept that it is a positive sign that the applicant has passed voluntary drug screening as recently as May 2024, I do not consider that his current circumstances represent a realistic simulation of how the applicant will behave once released into the community when the risk of deportation has been lifted.
Third, the applicant’s insight into his behaviour is a relatively recent phenomenon which was only exhibited once a large volume of documents about his criminal offending and serious behaviour were made available to the parties through the summons process. When the applicant attended Mr Watson-Munro, his history of drug use was not entirely accurate nor did he make frank disclosure about how poor his attempts at rehabilitation had been in the past.
Fourth, there is evidence that he persists in the belief that his cannabis use (which has persisted throughout his time in Australia including in detention) is not a problem. This relaxed attitude to substance use poses very real risks for his continued abstinence from ice. So much was confirmed by Mr Watson-Munro.
I accept that the applicant has more insight than he once did about his behaviour but I have doubts about his long term commitment to remaining clean. His past record shows that he has assured courts and other officials in the past that he is not using and won’t use again if he is shown leniency, and within very short periods of time he has resumed using. His participation in courses suggests he may be starting to make the changes necessary to stay away from ice, but he has failed so many times before that it is difficult to be optimistic. The applicant’s family is optimistic that this time things will be different but there is only weak evidence to support such an assessment.
The applicant’s very recent decision to enrol in a rehabilitation program with Odyssey House does not reassure me that he has the determination necessary to remain drug free.
I consider it likely but not certain that the applicant will resume using ice at some point if released into the community. When that happens, the applicant will engage in further criminal or other serious conduct. That conduct is likely to involve property crimes and threatening and abusive behaviour towards his wife and children when he is experiencing the effects arising from his ice addiction. I consider it at least moderately likely that the applicant will re-offend and the risk is probably higher than that.
Conclusion in relation to protection of the Australian Community
In these circumstances, given the nature of re-offending that may occur and the likelihood that it will re-occur, the protection of the Australian community consideration weighs very heavily against revoking the cancellation of the applicant’s visa.
Family Violence
The Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in.
There is clear evidence that the applicant has engaged in family violence on multiple occasions. In 2008 he slapped his wife and made threats towards her. In 2010 he punched her in the back. In 2015 he punched his wife repeatedly in front of his children.
In 2019 the applicant behaved in a threatening manner punching the door of his wife’s house as well as making violent threats to her. In 2020 he breached the AVO which she had obtained following the 2019 incident. On 3 February 2020, the Applicant breached the AVO again by returning to his wife's home. When refused entry, the Applicant became aggressive, swore and yelled at his wife, and kicked over pot plants and damaged property.
The applicant’s family violence is frequent. There is no trend of increasing seriousness and the physical assaults on his wife appear to have stopped. However, the applicant whenever he was free in the community regularly behaved in a threatening manner causing his wife to be fearful.
The applicant has undertaken courses which may assist him to avoid family violence in the future and perhaps has greater insight into the harm he is inflicting than in the past, but so long as the applicant is prone to the use of ice there is a significant risk of further family violence.
The applicant has re-offended since being formally warned by both officials representing the Minister and in the courts. In particular, in its letter of 1 September 2017 the delegate who revoked the applicant’s visa cancellation stated in the covering letter:
“Domestic violence is absolutely unacceptable to the Australian community. This warning will be taken into account in the event of any future decision on [your] visa status.”

In a letter dated 11 September 2019 a delegate of the Minister, after revoking a second visa cancellation, warned the applicant that:
…a non-citizen [who] breaches this trust by engaging in serious criminal conduct, especially where it involves violence against women…should generally expect to forfeit the privilege of remaining in Australia.
Despite these warnings the applicant engaged in further family violence following his release into the community.
This consideration weighs very strongly against the applicant’s visa cancellation being revoked.
Strength Nature and Duration of Ties
The applicant has been in Australia since 2002. All of his immediate family are present in Australia including his wife and two daughters, his mother and two brothers.
Despite having been in Australia for more than two decades his other social links are weak. He has not worked for almost a decade and there is no evidence to suggest that he has been involved in the community in other ways.
Despite numerous episodes of family violence, the applicant’s wife is very supportive of the applicant remaining in Australia. She has indicated that neither she nor her daughters would accompany him back to Fiji if his visa remains cancelled and that she does not want to lose him as an emotional and financial support. The financial concerns she has if the applicant is removed were aggravated (at least for a period) following surgery she underwent which limited her ability to work and earn enough to meet the family’s living expenses. She is very close to the applicant and they speak regularly each day. The applicant’s wife believes the applicant when he says that he will not take drugs again and will not offend against her again. The applicant has a very close emotional tie to his wife.
The applicant’s mother is aged 72 and also lives in Australia. She has said that she needs her eldest son around since her husband passed away and she wants him to remain in Australia.
The applicant’s two brothers have also provided supportive statements.
The applicant also has a friend, identified only as ‘Sam’ who has indicated that he has a job for the applicant in auto repairs if he is released into the community.
The applicant’s daughters are also close to him. I will discuss their relationship with their father further when considering the best interests of minor children. However, I have also taken the closeness of the relationship into account when considering the strength of the applicant’s ties to Australia. I note that one daughter describes the applicant as ‘the glue that holds the family together’. I accept that the applicant’s relationship with his daughters is a very close one and that these relationships must be given more weight than the applicant’s other ties to Australia.
The applicant was not a resident in Australia during his formative years. In the first decade of his time in Australia he was a productive member of the workforce. The applicant’s serious offending did not begin until 2009.
In analysing this consideration the factors are mixed. The applicant grew up outside Australia, but now, seemingly all of his family live here. He is close to his wife and children and to other parts of his extended family. However, he has weak connections to the broader community. He has not worked for almost a decade and the evidence of work prospects on release is unconvincing. The applicant has spent significant amounts of time away from his family as a consequence of his incarceration and time in immigration detention. As a result there have been long periods where his family has had to cope without his physical presence. His family ties are strong, but his ties to the community are otherwise weak.
This consideration weighs in favour of revocation of the visa cancellation, but only moderately.
Best interests of minor children in Australia affected by the decision
The applicant has two minor children in Australia who will be affected by this decision – SSD (aged 12) and SHD (aged 16).
I must make a determination about whether non-revocation is or is not in the best interests of each child affected.
In considering the best interests of each child, the following factors must be considered as they are relevant in this case:
(a)The nature and duration of the relationship between the child and the non-citizen. The relationship is parental. There have been long periods of absence;
(b)The extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
SS Dass
The relationship between the applicant and SSD is a parental relationship. The applicant has been present in her life since her birth in 2007. There have however been long absences in recent years as a result of the applicant serving time in relation to various offences followed by periods of time in immigration detention. In addition, the applicant has spent periods not living with SSD due to the requirements of AVOs. He is however in regular contact with SSD by phone and she has visited him in immigration detention.
In a statement submitted to the Tribunal, SSD indicated that her father was very dear to her and that she desperately longs to have her father back for the next chapter of her life. She did not give oral evidence in the Tribunal because she was preparing for an exam. She did however meet with Mr Watson-Munro who confirmed the closeness of the relationship and that SSD missed the applicant and wanted him to return to the family. He also commented briefly that her capacity to maximise her potential will be undermined by the applicant’s absence.
The applicant himself expressed concern that separating him from SSD will have a negative impact on her and may lead to drug use or have an adverse effect on her studies. There does not appear to be any basis for the concern that SSD may fall into drug use, but I am prepared to accept that in a situation where SSD is permanently separated from her father that may have an adverse effect on her mood and mental health and there is a risk of some impact on her educational outcomes. I am also satisfied that putting SSD into a situation where she is raised by a single parent also has potentially adverse financial consequences for her. I note however that whether the applicant will ever make a positive financial contribution to his family is extremely uncertain.
In relation to the other factors which must be considered, I am very unsure whether the applicant will play a positive parental role in SSD’s life if he is released into the community. His drug use makes him unreliable and at times threatening. If he resumes the use of ice his presence in SSD’s life is likely to fall well short of a positive parental role.
The applicant has engaged in appalling conduct in front of SSD. He has assaulted her mother in her presence. He has used her straws to administer drugs to himself. He has attempted to violently enter her home contrary to court orders. While it is difficult to judge the full impact of such behaviour without professional assistance, ordinary human experience suggests that conduct of this nature would have had some detrimental effects on SSD.
If the applicant is returned to Fiji I am satisfied that would have a negative impact on SSD. It is difficult to assess the extent of the impact. She has been separated from her father before for extended periods and has been able to maintain contact through her phone. It is however a significant step to eliminate the prospect of any significant direct physical contact between a father and a child. I am satisfied separation would have a negative effect on SSD.
I note however that SSD has her mother to fulfil a parental role, SSD has been exposed to family violence perpetrated by the applicant and given the events that she has witnessed it is likely she has experienced emotional trauma.
SSD has however expressed the view that she would like her father to stay in Australia.
While the picture is mixed I am satisfied that on balance it is in SSD’s best interests for her father to remain in Australia but only marginally so.
SH Dass
The relationship between the applicant and SHD is a parental relationship. The applicant has been present in her life since her birth in 2012. Similar to her sister, there have however been long absences in recent years as a result of the applicant serving time in relation to various offences followed by periods of time in immigration detention. In addition, the applicant has spent periods not living with SHD due to the requirements of AVOs. He is however in daily contact with SHD by phone and she has visited him in immigration detention.
There is no statement from SHD expressing her views nor did she attend the assessment with Mr Watson-Munro. The applicant’s evidence is that they are close and in daily contact. I have no reason to doubt that evidence.
I am very unsure whether the applicant will play a positive parental role in SHD’s life if he is released into the community. His drug use makes him unreliable and at times threatening. If he resumes the use of ice, his presence in SHD’s life may be harmful.
The applicant has engaged in abusive conduct directed towards SHD. I am satisfied that in 2015 he said to her "Fuck off, I'm not your papa any more mother fucker bitch". He has assaulted her mother in her presence. He has attempted to violently enter her home contrary to court orders. While it is difficult to judge the full impact of such behaviour without professional assistance, again, ordinary human experience suggests that conduct of this nature would have had a detrimental effect on SHD.
If the applicant is returned to Fiji I am satisfied that would have a negative impact on SHD. It is difficult to assess the extent of the impact. She has been separated from her father before for extended periods and has been able to maintain contact by phone. Again, it is a significant step to eliminate the prospect of any significant direct physical contact between a father and a child. I am satisfied separation would have a negative effect on SHD in that respect.
I note however that SHD has her mother to fulfil a parental role, SHD has been exposed to family violence perpetrated by the applicant, and given the events that she has witnessed she is likely to have experienced emotional trauma.
While no clear answer emerges in relation to SHD’s interests, given the importance of the relationship between a father and a daughter I am satisfied that on balance it probably is in SHD’s best interests for her father to remain in Australia.
I note that in relation to both daughters the applicant expressed concern that they would be financially disadvantaged by his removal from Australia. Given that the applicant has not been employed for almost a decade and, if anything was a drain on family finances in that time, I am not prepared to make the optimistic assumption that the applicant will be a positive financial contributor to his children’s upbringing if he remains in Australia.
Other minor children
The applicant has identified three other minor children whose interests are affected. They are two nephews and a niece. As their best interests are very similar I will discuss them together but I have considered each separately where the evidence allows me to do so.
There is virtually no evidence before the Tribunal on the impact on these children if the applicant’s visa cancellation is not revoked. The children’s names are listed in the G Documents at page 86, but other than the details establishing the relationship to the applicant and their ages, no relevant information has been provided. Consequently, it is difficult to make any assessment by reference to the matters identified in paragraph 8.4(4). I am however satisfied that the children have other persons in their life who fulfil the parental role. I am not satisfied in relation to any of the three children that it is in their best interests for the applicant to remain in Australia. I accept that the applicant has a close-knit extended family (and I have considered that in the context of the applicant’s ties to the Australian community), but in the context of this consideration I do not have enough information to be satisfied that it is in these children’s best interests for the visa cancellation decision to be revoked.
Overall assessment
My overall assessment is that given that the applicant is very close to his two daughters, this consideration weighs very heavily in favour of revoking the visa cancellation.
Expectations of the Australian community
As the Direction makes clear, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Australian community expects that the Australian Government should cancel a person’s visa if serious character concerns are raised through:
(a)acts of family violence;
(b)commission of serious crimes of a violent or sexual nature against women; and
(c)commission of crimes against government officials in the performance of their duties.
This expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
Relevant to this consideration, the applicant has engaged in acts of family violence. The assaults on his wife also constitute serious crimes of a violent nature against a woman. This consideration weighs heavily against revoking the cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Legal consequences of the decision
The applicant is, if the cancellation of his visa stands, liable to removal from Australia as soon as reasonably practicable and in the meantime he will be held in immigration detention. The applicant has not made any claims which suggest that Australia has any non-refoulement obligations in relation to him and there is no reason to think that such obligations apply.
The applicant has submitted that the most serious legal consequence of any decision not to revoke the cancellation is that Mr Dass will never be able to return to his family in Australia and consequently this consideration should be given some weight in favour of revocation. I accept that submission.
Impediments to maintaining basic living standards if removed
The applicant submits that he has lived in Australia for half his life and has no close family or other ties or connections in Fiji. As a consequence he will struggle to find employment there. This will be an impediment to him maintaining basic living standards. I accept this submission.
Further, given the underdeveloped state of the health care system in Fiji, the applicant is far less likely to be able to access the type of assistance that Mr Watson-Munro has made clear he needs – not just in terms of dealing with his current psychological issues but also in terms of treatment of his substance abuse and addiction. When that is combined with the absence of incentives to avoid drug use and anti-social behaviour upon being returned to Fije, the applicant submits that he will struggle to avoid drug use and consequently maintain basic living standards. In these circumstances the applicant contends that this consideration should be given substantial weight in favour of revocation.
I accept that without the assistance Mr Watson-Munro has identified it is very likely that the applicant will return to drug use or, at the very least, anti-social alcohol use upon his return to Fiji. This will make it difficult for the applicant to find work and make it difficult for him to make pro-social connections and access government assistance. In a social context where the applicant has no immediate family to support him, I accept that he may struggle to maintain basic living standards.
This consideration weighs heavily in the applicant’s favour.
Impact on the victim
The applicant’s wife is a victim of his crimes. In her supportive statements to the Tribunal she has emphasised that she wants the applicant to return to his family and resume his parental responsibilities, both emotional and financial. While her assessment of the chances of the applicant turning his back on drugs and resuming employment may be unrealistic, I do not doubt the sincerity of her desire for it to occur. Returning the applicant to Fiji will clearly have a negative emotional impact on her. In these circumstances, this consideration weighs in favour of revocation.
Impact on Australian business interests
There is no identifiable impact on Australian business interests. This consideration is neutral.
CONCLUSION
The applicant’s offending must be treated as very serious. The protection of the Australian community consideration weighs very strongly in favour of not revoking the visa cancelation as does the expectations of the Australian community consideration.
The considerations placed on the other side of the ledger are not so strong. The applicant’s ties to Australia are exclusively family based and his connection with family has been the subject of significant disruption over the past 9 years due to his drug use, incarceration and family violence orders. While it is in the best interests of the applicant’s daughters that he remain in Australia, I am not prepared to give that consideration significant weight given that the evidence on the matter is finely balanced. I accept that the applicant may well struggle to establish basic living standards in Fiji and his wife will be negatively impacted by his removal but these matters when weighed against the seriousness of the applicant’s offending and his repeated failure to heed the warnings he has been given about the need to comply with Australian law, they do not provide another reason to revoke the cancellation of the applicant’s visa.
DECISION
The decision under review is affirmed.

172.

173. I certify that the preceding 171 (one hundred and seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.

...................................[SGD].....................................
Associate
Dated: 11 July 2024

Date(s) of hearing:

18 - 19 June 2024

Solicitors the Applicant: Mr M Jones

Solicitors for the Respondent: Ms N Donaghy, HWL Ebsworth Lawyers

[2024] AATA 2398

20 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Proportionality

Standing

Natural Justice

Date(s) of hearing:	18 - 19 June 2024
Solicitors the Applicant:	Mr M Jones
Solicitors for the Respondent:	Ms N Donaghy, HWL Ebsworth Lawyers