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

Dauvou and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 111 (31 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7497
Re:Uluibau Dauvou
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:31 January 2020
Place:Sydney

The decision under review is affirmed.
.....................................[SGD]...................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class EN Subclass 186 Employer Nomination (Permanent) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Uluibau Dauvou and Minister for Immigration and Border Protection [2016] AATA 836
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
31 January 2020
INTRODUCTION AND BACKGROUND

Mr Uluibau Dauvou (“the Applicant”) is a 25 year old citizen of Fiji.[1] Movement records indicate that the Applicant first arrived in Australia on 30 April 2009 and has left Australia on four occasions with his most recent arrival date being 31 August 2012.[2] The most recent visa granted to him was a Class EN Subclass 186 Employer Nomination (Permanent) Visa (“the Visa”).[3]
[1] Exhibit 11, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [3].
[2] Exhibit 12, s 501 G-Documents, G11, page 57.
[3] Exhibit 12, s 501 G-Documents, G4, page 9.
The Applicant has a lengthy criminal history in Australia, commencing on 12 October 2011 when he was a child offender aged 17 when he was dealt with at the Griffith Children’s Court.[4] Since then he has been a frequent offender finding himself before the sentencing authorities in 2013, 2014, 2015, 2016 and 2018. These offences have resulted in convictions for:
[4] Ibid, G5, page 22.
·behaving in an offensive manner;
·affray;
·making/furnishing a false/misleading statement;
·larceny;
·drink driving;
·unlicensed driving;
·driving whilst disqualified;
·being in custody of a knife in a public place;
·travelling/attempting to travel without a valid ticket;
·seeking to re-enter licensed premises as an excluded person;
·assaulting a police officer in the course of that officer’s duty;
·resisting a police officer in the course of that officer’s duty;
·possession of controlled drugs;
·being in possession of goods suspected of being stolen;
·possession of a prohibited drug;
·failure to appear in accordance with bail acknowledgement; and
·assault occasioning actual bodily harm.[5]
[5] Ibid, G5, pages 18-22.
His latest period of incarceration commenced on 27 August 2018 upon his sentencing for criminal offending at the Liverpool Local Court, New South Wales (“NSW”).[6]
[6] Ibid, page 18.
While serving this term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 29 November 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[7]
[7] Ibid, G4, page 9, paragraph [4].
On 24 December 2018, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[8] The delegate of the Minister decided on 8 November 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[9]
[8] Ibid, G9, pages 39–56.
[9] Ibid, G4, page 9–17.
The Applicant lodged an application with this Tribunal on 18 November 2019 seeking a review of the abovementioned decision dated 8 November 2019 not to revoke the cancellation of his visa.[10] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[11]
[10] Ibid, G1, pages 1–4.
[11] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 22 January 2020 and received oral evidence from the Applicant. Prior to the hearing, the Applicant filed certain written statements. None of the makers of those written statements were called to give evidence on behalf of the Applicant. The complete suite of written material forming the exhibit record of this hearing is particularised in the Exhibit Annexure attached hereto and marked “A”.
PREVIOUS MANDATORY CANCELLATION
A unique feature of this application is that the instant application actually comprises the second time the Applicant has applied to this Tribunal for the revocation of a decision by the Respondent mandatorily cancelling his visa.[12] On 10 February 2016, his Visa was mandatorily cancelled pursuant to convictions he received in a sentencing episode that occurred on 21 January 2015. On that day, the Applicant was sentenced for the three offences of (1) assaulting a police officer in the execution of his/her duty; (2) resisting a police officer in the execution of his/her duty; and (3) driving a motor vehicle with a high-range reading of blood alcohol concentration.
[12] Exhibit 12, s 501G G-Documents, G15, pages 76-89: Previous Mandatory Cancellation Decision of this Tribunal per Deputy President S E Frost, Uluibau Dauvou and Minister for Immigration and Border Protection [2016] AATA 836.
Similar to the present circumstances, on 30 May 2016, the Respondent’s Delegate refused to revoke the mandatory cancellation of the Applicant’s Visa. The Applicant applied to this Tribunal for review of that earlier mandatory cancellation decision. On 25 October 2016, this Tribunal set aside the delegate’s decision, revoked the cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Act, and restored his Visa to him.
Notably, in its Reasons for Decision in 2016[13] this Tribunal said these things:
(i)the Applicant’s Visa should be restored to him so that he has an opportunity to “turn his life around”;[14]
(ii)the expectation of the Australian community would favour restoration of the Applicant’s migration status on the basis that he “be given one last chance” to moderate his offending;[15]
(iii)if he failed to take the opportunity afforded to him by this Tribunal on 25 October 2016, the “community’s tolerance would then, I think, be exhausted”.[16]
[13] Exhibit 12, s 501G G-Documents, G15, pages 76-89: Previous Mandatory Cancellation Decision of this Tribunal per Deputy President S E Frost, Uluibau Dauvou and Minister for Immigration and Border Protection [2016] AATA 836.
[14] Ibid, G15, page 89, paragraph [66].
[15] Ibid, pages 86 and 89, paragraphs [46] and [67].
[16] Ibid, page 89, paragraph [68].
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[17]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[18]
[17] [2018] FCAFC 151.
[18] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[19] I will address each of these grounds in turn.
[19] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 27 August 2018, the Applicant was convicted at the Liverpool Local Court, NSW, of assault occasioning actual bodily harm and sentenced to a term of imprisonment of 16 months.[20] Also on 27 August 2018, the Applicant was sentenced to the following additional custodial terms:[21]
·assaulting a police officer in the execution of his/her duty: 16 months imprisonment; and
·resisting a police officer in the execution of his/her duty: 16 months imprisonment;
·larceny: 3 months imprisonment;
·possession of prohibited drug (x2): 3 months imprisonment on each charge;
·being in possession of goods suspected of being stolen (x2): 3 months imprisonment.
[20] Exhibit 12, s 501 G-Documents, G5, page 18.
[21] Ibid, “Check Results Report”, Prepared by the Australian Criminal Intelligence Commission, G5, pages 18-22.
The Applicant has a lengthy criminal history which runs for five pages.[22] Excluding the custodial terms he received for the offending described in the immediately preceding paragraph, even a cursory review of his criminal history indicates he has received additional custodial terms for the totality of his offending amounting to approximately 141 months. This is a cumulative custodial period of eleven years and nine months.
[22] Ibid.
In his written material, the Applicant did not deny his offending, and said “… I admit that I was at fault and may have breached/violated certain term [sic] and conditions of my visa.”[23] At the hearing, the Applicant did not appear to cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”.
[23] Ibid, G16, page 91.
The Applicant has been sentenced for a significant number of offences across some 15 separate sentencing episodes running from October 2011 until August 2018. Some of those sentences involved early-release and a condition that some of the sentences be served concurrently. That said, I note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[24]
[24] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[25] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[26]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[25] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[26] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[27]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[27] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.

In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents now before the Tribunal:
(a)his criminal history which appears in a document entitled “Check Results Report” from the Criminal Intelligence Commission;[28]
[28] Exhibit 12, s 501 G-Documents, G5, pages 18-22.
(b)the Tender Bundle (comprising pages numbered 1-194)[29] which contains:
[29] Exhibit 13, Tender Bundle.
(iv)excerpts of documents produced under summons by the Bankstown Local Court;
(v)excerpts of documents produced under summons by the Liverpool Local Court;
(vi)excerpts of documents produced under summons by the New South Wales Police;
(vii)excerpts of documents produced under summons by the New South Wales Department of Justice;
(viii)documents relating to the Applicant’s detainment in Immigration Detention;
(c)the Further Tender Bundle (comprising pages numbered 195-236)[30] which contains excerpts of documents produced under summons by the Penrith District Court;
[30] Exhibit 14, Further Tender Bundle.
(d)the Supplementary Tender Bundle (comprising pages numbered 237-293)[31] which contains:
(ix)NSW Police Facts Sheets (TB7, TB10, TB11, TB14, TB17, TB20);
(x)Court Orders Forms (TB8, TB12, TB18);
(xi)Court Attendance Notice – Griffith Children’s Court (TB9);
(xii)Court Attendance Notices – Liverpool Local Court (TB13, TB15, TB16);
(xiii)Court Attendance Notice – Waverly Local Court (TB19);
(xiv)Forensic Psychological Report – Ms Caroline Hare, Forensic Psychologist (TB21 and T22);
(xv)Psychiatric Report of Dr Olav Nielssen (T23);
(xvi)Applicant’s Statutory Declaration (T24).
[31] Exhibit 15, Supplementary Tender Bundle.
As mentioned earlier, the material discloses that between October 2011 and August 2018, the Applicant came before the courts for sentencing on approximately 15 occasions and that he was convicted of some 43 offences broadly capable of categorisation as (1) offences against the person; (2) offences against the property of others; (3) fraudulent or misleading conduct; (4) offences that interfere with the capacity of public officials (most notably, police officers) to execute their duties; (5) drug offences; and (6) a range of drink driving, unlicensed, and disqualified driving offences.
Further, the Applicant is responsible for serious violent conduct, committed on a frequent basis during the period of his imprisonment. Of equal serious concern is that the Applicant’s two periods in immigration detention demonstrate that his violence and aggression continued for those two immigration detention periods.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant gave oral evidence at the hearing. After being taken to specific details of a particular offending episode, he appeared, in the main, to concede (1) commission of the offence or offences, and (2) the significant level of seriousness of those offences. Other aspects of his oral evidence involved him giving unconvincing and unsubstantiated explanations of actual offending episodes and evidence pointing to both his use of illicit substances and that of his partner.
I agree with the Respondent’s contention that the nature and circumstances of the Applicant’s offending is capable of no other categorisation than “very serious”. This finding is readily capable of being made upon application of the relevant factors appearing Paragraph 13.1.1 of the Direction.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or offices due to the position they hold, or in the performance of their duties, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)…
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status...;
i)….
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant has committed what can only be construed as very serious crimes of violence. That violent offending has been perpetrated against women, and police officers in the performance of their duties. The Applicant’s propensity towards violence is evident from an early stage in his offending history. He has a conviction for affray in 2013 and another conviction in 2014 for being in possession of a knife in a public place.
He was convicted for multiple counts of assault against a police officer in the course of his/her duty in 2015 (x5 counts) and 2018 (x1 count). His offending is not just limited to police officers. It extended to other members of the general community (particularly women) as can be seen from his conviction in August 2018 for assault occasioning actual bodily harm.
Even a cursory perusal of the Applicant’s criminal history demonstrates the commission of multiple crimes of violence. While the Applicant accepted his convictions for these offences it is clear from his respective assaults against police officers during 2016, and again in 2018 that violence seems to be his first-preferred default option for resolving a difficult situation or impasse. The violence he has displayed seems to have few or no boundaries. He has been violent towards (1) law-enforcement authority; (2) those whom he knows he can easily overpower and dominate (in a physical sense) by having recourse to violence – specifically, women; and (3) in the relative confines of either immigration detention or criminal custody where detainees/inmates are taken and held for the specific purpose of curbing unlawful behaviour.
The difficulty for the Applicant in the instant application is that his propensity for resorting to violence has not been the subject of independent examination, treatment and reporting. It is correct that such evidence was before the Tribunal when it heard his application for the review the earlier delegate’s refusal to revoke the earlier mandatory cancellation of his Visa in 2016. Those two reports related to that particular application. Those two experts were not called as witnesses in the instant application nor were they asked to provide updated reports. One wonders what those two experts would have reported about because the Applicant’s history of offending – particularly his violent offending – has not abated since 2016.
In the absence of any such independent psychological or other expert evidence, the Tribunal must take and receive the factual circumstances of the Applicant’s offending as it finds them in the material whether it be in the form of summonsed police documents or relevant sentencing remarks. Having regard to (1) the specific material available to the Tribunal; and (2) the Applicant’s evidence at the hearing, I am of the view (for the purposes of this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction) that the often reckless circumstances of the totality of the Applicant’s violent offending – be it in the form of very violent conduct towards police officers, security officers in either criminal custody or immigration detention and against women – must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”. The Applicant has offended against women. The offending has occurred in the general community in the circumstances of an otherwise normal interaction between the Applicant and a member of that community.
On 2 February 2018, the Applicant found himself on the property of two other people. In circumstances where one would have expected the Applicant to show restraint and even contrition for being on someone else’s property, he proceeded to gratuitously – and very seriously – assault two female victims. The circumstances of the offending are as follows:[32]
“The accused in this matter Uluibau Sukabula Dauvou. The victim in this matter is [name redacted]. The witnesses are friends of the victim, [names of three witness redacted].
The victim and the victim’s twin sister and witness in this matter… reside on occasion with their father at [address redacted], Cabramatta. The accused and victim are not known to one another.
At about 5:50am on Friday the 2nd of February 2018 the victim and witnesses arrived at the address by vehicle. As the victim stopped outside the address she observed the accused walking down the driveway in the front yard of [address redacted], Cabramatta. The victim approached the accused and said “What are you doing here?”
The accused replied “I was picking up this bud.” The accused showed the victim a smoked cigarette bud. The victim called 000 on her mobile phone. The accused began to walk away and the victim grabbed the left arm of the accused. The accused, with his hand in a fist, swung it towards the left hand side face of the victim. The accused’s fist hit the victims’ face causing pain and swelling to her cheek and also swelling and bleeding to her upper lip.
…”
[32] Exhibit 13, Tender Bundle, TB2, page 46.
There are photographs, albeit not entirely clear photographs, of the facial damage inflicted by the Applicant on the victim. There was clearly no need for him to attack the victim in this way. The victim had been observed “…walking down the driveway in the front yard …” of the subject property. If there is any credibility to his story of picking up a cigarette butt, one wonders what he was doing smoking that cigarette on someone else’s property, specifically, while standing on the driveway of that property. In those circumstances, one can fully appreciate the stern and angry reaction of the victim. Given that he was on someone else’s property with a puerile excuse of what he was doing there, the Applicant’s reaction and consequential serious violent attack on the victim was in no way justified. The offending is, at once, gratuitous, appalling and cowardly.
This sub-paragraph (b) is also concerned with “crimes of a violent nature against … children”. It should be noted that the Applicant’s conduct in August 2018 involving his assault of a police officer in the execution of his duty and the additional charge of resisting that officer in the course of their duty involved the Applicant placing his children in harm’s way. While I accept the Applicant was not actually charged and convicted with offences against those children, even a cursory review of the circumstances of the offence confirms that this Applicant’s violent conduct has the capacity to draw innocent children into its orbit. The circumstances of the offending are recorded thus:[33]
“…
At 2:00am on Thursday the 9^th of August 2018, police attended the residential address of the accused and observed the front door to be wide open. Police observed a male dressed in a grey shirt and black vest walk through the main rooms but did not see what room he entered. Police suspected the male seen to be the accused. Police knocked on the front door continuously. At 2:06am on the same morning, the accused father answered the front door. Police questioned the father on the whereabouts of the accused to which he replied ‘I do not know’. Police requested to enter the home to which the father stated ‘Yes, come in and look’. Police were directed to the bedroom of the accused where he usually sleeps whilst at the property. Police entered this room and observed there to be a figure wrapped up in the shape of a human in the bed blankets immediately suspecting it to be the accused. Police raised the attention of the male by tapping him on the leg to which he lifted the blankets off his head. Police confirmed the identity of the male to be the accused from a recent Police charge photo. The accused yelled ‘Fuck off idiots’, whilst started to clench his fists and lash out against police. The accused has then awoken two young girls, who were also sleeping in the same bed and placed them in his lap saying ‘Fuck off I am not going anywhere without my girls, I go then they go’. Police started to contain the accused and negotiate the release of the young children from his possession. Police negotiations with the accused for a further one hour resulted in the accused agreeing to release the children to their mother, however the mother of the children was not answering her phone after approximately 12 attempts. Whilst speaking with the accused, Police observed his behaviour heighten in aggression as one moment he would be calm and then immediately started yelling and screaming saying ‘fuck off you dogs’ to Police. At about 3:40am on the same morning, the mother of the children … answered her phone and stated to the accused that she was on the way. The accused stated to Police that as soon as she arrives he would willingly come with police. At this stage, the accused has released the 4 year old child and kept hold of the 4 month old girl. As the infant was in the arms of the accused, police observed her to be unsettled, crying, screaming and hungry. The accused was not willingly handed her over to police and using the infant as a shield or distraction so he would not have to come into custody. As a duty of care of the infant, police continued negotiations with the accused. At about 4:30am, the accused was still in possession of the infant child and the mother of the infant had not yet arrived. Police attempted to call the mother of the child about 8 times, however the phone was switched off. Police suspected that the accused was using the mother of the child to save him time and be a reason that he did not have to enter custody. At 4:40am, police observed the accused to fall asleep and drowsy. The accused eyes were blood shot, his speech started to slur and he continued to fall in and out of sleep. Police observed the infant to be positioned dangerously against the accused. Police immediately moved into remove the infant from the accused by taking hold of his upper body and raising arms above his hands, freeing the infant. As Police were doing this, the accused has used his right leg and striked it towards Sergeant … hitting him in the thigh. The accused used both his legs to continuously strike them at officers yelling ‘Fuck you cunts, fuck you’. The accused wriggled his body in attempts to resist the arrest and get out of the grasp of officers. Police eventually secured the accused where he started to co-operate and escorted to a secured Police vehicle. At 4:55 am on the same morning, … attended the location and confirmed that she was the mother of the two young children. The mother of the children took them into her care….”
[My underlining; errors in original]
[33] Ibid, TB3, page 82.
As mentioned, it is not correct to say that the accused was charged and convicted with a specific offence against either or both of the children in the abovementioned factual matrix. However, to my mind, his violent conduct captured both children into its orbit. His conduct involving the use of a four month old infant as some type of “shield or distraction so he would not have to come into custody”, is relevant for the purposes of this sub-paragraph (b).
Having regard to the circumstances of the Applicant’s violent attack against his female victim on 2 February 2018 and his propensity to place no boundaries around that offending such that it can draw children into its orbit is, to my mind, indicative of a finding that (1) his offences against women are, indeed, of a violent nature; and (2) an application of this sub-paragraph (b) of paragraph 13.1.1(1) of the Direction clearly militates in favour of a finding that the nature of the Applicant’s offending conduct is indeed very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction stipulates that crimes committed against vulnerable members of the community and government officials or representatives are serious. As has been referred to earlier, the Applicant has a particular predilection for offending against police officers in the course of their duty. It seems his primary method of response to the imposition of some type of lawfully and externally imposed regulation of his conduct – be it in the form of police officers, security officers working in the realm of a criminal custody facility and similar officers working in an immigration detention facility – has been a violent one.
The criminal history reveals violent conduct towards police officers in 2014, in 2015, and 2018. The offending is described in the history as both “assault officer in execution of duty – T2” and “assault occasioning actual bodily harm – T2”. While this type of conduct is viewed seriously by an application of this sub-paragraph (c), one need look no further than the remarks of the learned appeal Judge (Acting Judge Delaney), who heard the Applicant’s appeal relating to, inter alia, his January 2015 assault on a police officer:[34]
“…
The court’s attitude to any form of assault on any police officer or other type of person is that such matters are of such a serious nature that the persons must go to prison. Our police officers and ambulance officers and fire fighters are entitled to go around on their business without being assaulted or interfered with.
…”
[34] Exhibit 12, s 501 G-Documents, G7, page 26.
It is not just the Applicant’s violence towards persons in lawful authority that is relevant for this sub-paragraph (c). One should also have regard to the Applicant’s conduct (and convictions) relating to “resisting” or otherwise frustrating those persons in lawful authority from executing the functions the community pays them to do. That conduct, as well, constitutes “crimes committed against … government officials … in the performance of their duties…”. Another serious dimension of this offending involves the unnecessary consumption of police and other authority-based community resources in circumstances where those resources could be deployed elsewhere. Put simply, this “resistance” towards and frustration of lawful authority would not form part of the Applicant’s criminal history if he had a greater respect for lawful authority.
Applying the subject sub-paragraph (c) to the totality of the Applicant’s offending towards police officers and security officers in either criminal custody or immigration detention leads to no other finding that his offending is indeed very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.

As mentioned earlier, the Applicant initially arrived in Australia in April 2009. His Movement Details can be summarised as follows:
·Arrive 30 April 2009;
·Depart 19 May 2009;
·Arrive 13 November 2009;
·Depart 13 May 2010;
·Arrive 14 December 2010;
·Depart 10 May 2012;
·Arrive 14 June 2012;
·Depart 14 August 2012; and
·Arrive 31 August 2012.
The Applicant’s absences between April 2009 and August 2012 were for the purposes of completing some of his schooling and visiting relatives. By the time he arrived in Australia for the final time in August 2012, the Applicant was 18 years of age. His criminal history starts in 2011. That criminal history clearly indicates that the custodial terms imposed upon him militate in favour of a finding that his offending to date has been very serious.
From even prior to the Applicant attaining his age of majority in this country, he has been offending while here. He is now 25 years of age. His offending history that runs from October 2011 until August 2018 is so significant and so concentrated across a six to seven year period that it is not unreasonable to say that it has dominated his adult life in this country. The purpose of my outlining his abovementioned Movement History is to demonstrate that although he first came here as a 15 year old in 2009 and may have been absent from Australia intermittently until August 2012, the predominant theme in his life since August 2012 has involved breaking the law.
The offending history involves some 15 sentencing episodes that dealt with at least 43 individual offences. As I outlined earlier, this offending history has yielded sentences with a cumulative total of approximately 141 months which equates to a custodial period of eleven years and nine months. This sub-paragraph (d) militates for no other finding than that this Applicant’s offending is indeed of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Dealing first with the frequency of the Applicant’s offending, I note he is 25 years of age and has an offending history that runs for just under seven years. This means he has been offending for all of his adult life. Having regard to his criminal history, his offences relating to stealing, drug possession and goods in his custody suspected of being stolen further demonstrate the frequency of his offending, especially when those offences are viewed cumulatively with his crimes of violence, his populous traffic history together with the balance of his offending.
His offending has seen him before lawful authority on at least 15 individual occasions. Many of those sentencing occasions involved sentencing for multiple offences. He has committed at least 43 individual offences over an offending history that runs for just under seven years, this equates to the commission of something like six offences per year for every year the Applicant has spent in this country as an adult. There can be no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
Having regard to any discernible trend of increasing seriousness in the Applicant’s offending history, it can be said in its early stages (that is, from October 2011 until November 2013) his offending could be said to have been at the lower to middle point of seriousness. This type of offending involved furnishing false information, driving with a middle-range reading of blood alcohol concentration, behaving in an offensive manner and driving with an expired license. However, the nature of the offending changes from January 2014 when the Applicant was charged and convicted of being in possession of a knife in a public place. There follows a criminal history which then devolves into repeated driving offences, but then graduates into the very violent conduct towards lawful authority and members of the general community and drug offending. Offending in which the Applicant disrespects the property rights of others seems to be a consistent feature of his offending history.
There is, to my mind, a clearly discernible “trend” in the seriousness of the Applicant’s offending from 2011 to 2018. It would be fair to say that his difficulties with lawful authority arising from his offending have been a predominant feature of his adult life in this country. It was clear from his oral evidence that his offending is attributable to unresolved substance abuse issues with either alcohol or illicit drugs. At the hearing, the Applicant said that his offending resulting in the first cancellation of his Visa was attributable to his difficulties with alcohol. He also said that his offending since that time that has given rise to the second cancellation of his Visa and the instant application, is attributable to his unresolved difficulties with illicit drugs.
The overall effect of the Applicant’s substance abuse issues can be gleaned from his criminal history: that is, when presented with a difficulty or impasse in his life, his first resort or means of resolution is one of violence. Perhaps the most concerning trend in the seriousness of his offending can be found in the reality that his violent conduct seems to have no boundaries. He has been violent towards women, law enforcement officers and the general public. There can be no question that his sense of right and wrong has been adversely affected by the impact of unresolved issues with alcohol and illicit drugs.
Thus, an application of this subparagraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and, certainly since 2014, the initially consistent but increasing level of its severity, is such as to attract a finding that it has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The cumulative effect of the Applicant’s repeated offending gives rise to three relevant observations. First, even though his criminal history runs for just under seven years, it is clear from the sentencing regime that he has been afforded multiple opportunities to moderate and curb his impulsivity to offend. Sentencing judicial officers have given him the benefit of the imposition of fines instead of time in custody, the suspension of custodial time so that he does not serve the full term as well as orders for the serving of sentences concurrently rather than cumulatively. On at least one occasion he has been given the benefit of bail but, even then, he breached that bail and failed to appear on the stipulated date. It is correct to say that none of those measures have resulted in a reduction in the level of either consistency or seriousness of the Applicant’s offending. It starts in October 2011, and intensifies from January 2014 onwards from which time it has become very serious.
The second observation about the cumulative effect of the Applicant’s offending is that it is demonstrative of a failure within him to develop any semblance of respect for lawful authority. He clearly does not respect the lawful authority represented by police officers. He has nine convictions for offences against police officers across the just under seven years of his criminal history. He also does not respect the rules governing the operation of motor vehicles on Australian roads. He has convictions for some 16 driving offences ranging from driving whilst under the influence of alcohol, unlicensed driving, driving an unregistered vehicle, and disqualified driving. For disqualified driving alone, he has convictions for eight offences across a criminal history of just under seven years. This means that for every year of his time in the country as an adult the Applicant has been convicted for driving whilst disqualified. There can be no clearer indication of his lack of respect for lawful authority.
He does not respect the property rights of others. There are at least five convictions for offences against the property of others. Some of those offences are listed as, for example, “larceny value <=$2000 – T2”. In his oral evidence, the Applicant said that since his Visa was restored to by this Tribunal in October 2016, he has resorted to property offending to primarily raise money to satiate his addiction to illicit drugs.
The third observation about the cumulative effect of the Applicant’s offending is that it relates to whether or not his issues with alcohol and illicit drugs remain unresolved. In his oral evidence, he sought to suggest that he was “clean now” and that he simply wanted to return to his family and be the ideal family man. The difficulty with that contention is that it is not corroborated by any contemporary independent medical evidence. As mentioned earlier, the Applicant did adduce two expert medical reports in support of his 2016 application to set aside the delegate’s refusal to revoke the mandatory cancellation of his visa. As also mentioned earlier, those reports were not relied on in the instant case, and, in any event, one can say with certainty that his conduct between October 2016 (the return of his Visa) and now has superseded any observations or findings made in those now-almost five year old reports. Without the benefit of any such current and contemporary independent medical reporting, there can be no certainty that any of his substance abuse issues have been resolved or are otherwise under some kind of remedial management and control. Were he to offend again, he could cause very serious and, indeed, catastrophic harm. This is another very adverse cumulative effect of his offending.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction points a decision-maker to the question of whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware in writing, about the consequences of further offending in terms of that non-citizen’s migration status. In the instant case, the Applicant has received such a warning and, indeed, from this very Tribunal. This sub-paragraph (h) requires the Applicant to “… being formally warned… in writing about the consequences of further offending in terms of the non-citizen’s migration status…”. The sub-paragraph is silent about the source of such warning. I do not think it unreasonable that a decision of this Tribunal about exactly the same Applicant involving the exactly the same subject-matter (mandatory cancellation of his visa) constitutes a formal warning for the purposes of this sub-paragraph (h).
In its decision delivered on 25 October 2016, this Tribunal reached the following conclusion:[35]
“OVERALL ASSESSMENT OF MR DAUVOU’S CASE
62. This is a borderline case involving a young man with a clear choice ahead of him.
63. One option is to honour his commitment to stay away from alcohol, take responsibility for his actions, acknowledge the harm he has done to himself and others, and become the person his family and partner say he is capable of becoming.
64. The other option is to continue on the path of his past, ignore his responsibilities to the community, and keep breaking the law.
65. He says he has chosen the first option.
66. I have concluded that, on balance, he should be given the opportunity to turn his life around. …
67. I think the Australian community would expect a young man like Mr Douvou [sic] to be given one last chance.
68. If Mr Dauvou fails to take this opportunity, he cannot expect any further indulgence from the country he would like to call his home. The community’s tolerance would then, I think, be exhausted.”
[35] Ibid, G15, page 89.
Despite this very favourable decision to restore his visa to him, the Applicant proceeded to commit further offences that found him before lawful authority on:
·8 November 2016[36] for possessing controlled drugs (a Commonwealth offence);
[36] This is barely two weeks after he received the favourable decision from this Tribunal on 25 October 2016.
·9 April 2018 for larceny;
·27 July 2018 for “Drive vehicle, use scooter etc on platform, pathway etc”;
·27 August 2018 for a range of offences including:
ohaving goods in personal custody suspected of being stolen (x 2);
opossessing prohibited drugs (x 2);
olarceny;
oresisting an officer in the execution of their duty;
oassaulting an officer in the execution of their duty;
ofailure to appear in accordance with bail; and
oassault occasioning bodily harm.
The Applicant has, despite his earlier undertaking to this Tribunal to change his ways, continued with his very serious offending. In some respects, it has increased in severity, particularly with reference to his violent attack upon an unsuspecting member of the general community in Cabramatta in 2018. The earlier-constituted Tribunal, to my mind, could not have done more to outline the possible consequences of the Applicant’s continued offending on his visa status in this country. This Applicant was afforded the very significant benefit of this Tribunal setting aside the refusal of the Minister’s delegate to refuse to revoke the first cancellation of the Applicant’s visa. The Tribunal made this concession even though the learned Deputy President thought it was a “borderline” case. It is clear that this earlier decision was made on the understanding that the Applicant was receiving “one last chance”.
Thus, despite receiving the benefit of the Tribunal’s decision in October 2016 the Applicant now finds himself in the identical predicament. He has been warned of the consequences of further offending by a combination of things: (1) the first mandatory cancellation of his visa; (2) the first delegate’s non-revocation decision; and (3) this Tribunal’s decision from October 2016. It seems he has learnt nothing and has committed even more serious offences. He has not made good on his promise or undertaking to change his ways. There can be no other finding other than that this Applicant has re-offended and significantly so since being formally warned about the consequences on his migration status. This sub-paragraph (h) of Paragraph 13.1.1(1) of the Direction clearly militates in favour of a finding that his offending is of a very serious nature.
The chapeau to the factors at Paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
There are two further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at Paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
First, the Applicant has exhibited violent physical conduct while in both criminal custody and immigration detention. While his violent conduct in immigration detention did not see him convicted for a “crime committed while the non-citizen was in immigration detention” pursuant to sub-paragraph (i) of the Paragraph 13.1.1(1) of the Direction, I am of the view that this conduct while in criminal custody and immigration detention nevertheless falls under the abovementioned chapeau to the factors appearing at 13.1.1.
The records from Corrective Services NSW indicate that the Applicant has been involved in serious violent conduct while an inmate in the NSW criminal custody system. On 17 February 2019, those records reveal that the Applicant participated in a “group assault” of another inmate which caused “substantial face and head injuries” to that victim.[37] This is not the only record of the Applicant’s violent conduct while in criminal custody. On 15 November 2018, the prison records reveal that the Applicant “king hit [name redacted] and next thing it was an all in brawl involving inmates [names redacted]”.[38] It should be noted that consequent upon the violent conduct (not just of the Applicant but of other inmates as well at that time), the prison authorities were compelled to deploy their “Immediate Action Team” (“IAT”) thus:[39]
“IAT ran in and gas was deployed. All inmates in the fight were restrained by IAT. At no time were the inmates given permission to behave in this manner. I submit this report for the Governor for your consideration.”
[37] Exhibit 13, Tender Bundle, TB4, page 128.
[38] Ibid, page 127.
[39] Ibid.
The relevant immigration detention records demonstrate that the Applicant’s propensity towards violence has migrated not only from the general community to criminal custody, but also from criminal custody to immigration detention. On 28 August 2019, the Applicant’s conduct caused the detention authorities to record his involvement in a “’Category 2 – Major incident.”[40] The conduct involved aggressive behaviour towards the detention centre’s Emergency Response Team (“ERT”) of officers whereby the Applicant “attempted to kick and throw a computer motherboard towards ERT members”. This conduct resulted in the imposition of a “Behavioural Management Plan (BMP) for 4x consecutive weeks” upon the Applicant as a means of controlling his propensity for violent conduct.
[40] Ibid, TB5, 173–174.
Second, while it cannot be said that the Applicant “has provided false or misleading information to the department …” for the purposes of sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction, the material nevertheless reveals conduct designed to confuse or mislead others.
In his criminal history, the Applicant has respective convictions for:
·4 March 2013 “Make/furnish a statement which is false/misleading”; and
·16 April 2013 “Furnish false information/statement to licensee”.
In his communications with the Respondent, the Applicant has listed two aliases.[41] This is what transpired in cross-examination:[42]
“MS PEROTTI:[43] Back on page 39, you’ve listed that you have some aliases that you also go by. Is that correct?
APPLICANT: Yes, I’ve got one alias, miss.
MS PEROTTI: Okay?
APPLICANT: Two.
MS PEROTTI: Could you just clarify for the court what those aliases are?
APPLICANT: Falklan Dauvou and Uluibau Suka”
[41] Exhibit 12, s 501 G-Documents, G9, page 39.
[42] Transcript, 22 January 2020, page 7, lines 10–16.
[43] Ms Monica Perotti, Solicitor for the Respondent.
While the two convictions for furnishing false/misleading information do not relate to information the Applicant provided to “the department”, and while the Applicant did not deploy either of his two aliases in an effort to derive an advantage in his dealings with “the department”, I am nevertheless of the view that the totality of this particular aspect of his conduct is relevant and captured by the reference to “other conduct” referred to in the abovementioned chapeau to Paragraph 13.1.1(1) of the Direction.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that:[44]
“38 In this case, the nature of harm to victims if the applicant were to reoffend in the future is very serious and could involve significant physical, financial and psychological harm to members of the Australian community”
[44] Exhibit 11, Respondent’s SFIC, page 10, paragraph 38.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4) I think the Respondent’s abovementioned contention is correct.
The nature of the Applicant’s offending, as it has evolved in his criminal history from 2011 to 2018 is self-explanatory. Although he has been removed from the mainstream of the Australian community since 2018, the further evolution of his offending conduct – with its inherent predisposition to violence – is evident from his conduct both in criminal custody and immigration detention. In terms of the nature of his conduct since his removal from the Australian community, there is much to suggest that were he to re-offend if returned to that Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical, financial and psychological harm to members of that community.
It is also a matter of grave concern that the Applicant has continued to offend – indeed, extensively and seriously so – after receiving the significant benefit of a favourable decision for his visa status from this Tribunal in October 2016. Much of that decision and outcome was based on (1) the Applicant making promises about changing his ways; and (2) the learned Deputy President affording him an additional chance to re-establish himself as a responsible member of the Australian community. Despite that outcome, the Applicant has continued to offend and, indeed, very seriously so. One might have accepted that the violent conduct would have ceased in either or both criminal custody and immigration detention. It has not.
It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has a just under seven year period of criminal offending. He has been afforded the benefit of virtually the full ambit of sentencing regimes ranging from non-custodial terms to terms in actual custody. One is very hard-pressed to detect from the criminal history that the Applicant has experienced any form of deterrent effect such as to result in him ceasing his offending. He has had the benefit – via this Tribunal’s decision of October 2016 – of a very positive outcome which left him in no doubt about the effect of any future offending on his visa status in this country. He has abjectly ignored that benefit and warning.
In written submissions, the Applicant has said these things:
·“Australia is my home since 2008 when I first came here. I have my Fiance and kids here. All my family and friends are here in Australia. I have my job, church etc here.
Im a changed man physically and mentally. Ive learned my lessons. I’ve been rehabilitated.
Everything I ever known is about this country. I would be lost if I were to be send back to FIJI.
Please give me one more chance.”[45]
[45] Exhibit 12, s 501 G-Documents, G9, page 41.
[Errors in original]
·“I take responsibility for the crimes I commited. I deserve to be imprisoned. Im a change man now and im very sorry for the shamefull things ive caused this country. Im a clean man nou physically and mentally. I have set my priorities straight. I have my family waiting for me and I would be very shattered to lose them. I want to be with my kids and watch them grow up and provide for them. I also wanna help my partner in the upbringing of my kids. Please give me one more chance to be home with my family in this country I call home.”[46]
[Errors in original]
·“Sir/Madam, I admit that I was at fault and may have breached/violated certain term and conditions of my visa. I wish to advice you I am not proud of my action which saw to my imprisonment of 8 months. During this 8 months I have come to realize the consequences of my action on my little nuclear family.
…
Sir/Madam view of this I humbly seek the reconsideration of the Department in the cancellation of my visa since 29 November, 2018 and whilst at the detention centre, I have come realize and fully understand my responsibilities as a father to my two daughter and a husband to my wife. Being very ignorant in the past, I have been carried away by my bad decision and the influence and pressure that comes along with it. I publicly apologize for my actions and wish to confidently state that I am now a changed person, more matured and fully understand my responsibilities. I now fully appreciate my role in making a difference for my life and that of my family.”[47]
[Errors in original].
[46] Ibid, G10, page 55.
[47] Ibid, G16, page 91.
The Applicant’s contentions about being a changed man and being motivated to become one because of new-found obligations he feels he owes to his family are difficult to accept and uphold in circumstances where:
(a)he has continued to demonstrate an almost complete lack of respect for the lawful authority represented by police officers, legislation governing the use of our motorways and the provisions of court orders compelling him to do something;
(b)he has continued to commit violent crimes (including such crimes against women) despite respective warnings he has received via:
(i)the previous non-revocation of the Minister’s delegate; and
(ii)the previous decision of this Tribunal that restored his Visa to him in October 2016;
(c)despite the warnings in the immediately preceding subparagraph (b), the Applicant has continued to commit offences that are clearly demonstrative of a failure to respect both the personal and property rights of others;
(d)his brazen and blatantly violent conduct has persisted both during his time in criminal custody and immigration detention. This conduct has involved assaults against fellow inmates/detainees, staff members/security officers of those institutions, fighting episodes, drug possession and stealing.[48] His unlawful conduct while removed from the Australian community parallels his unlawful conduct when he was part of it.
[48] See Exhibit 13, Tender Bundle, TB5, pages 167–183.
In the course of the Tribunal proceedings in 2016, the Applicant effectively undertook to refrain from abusing alcohol and to otherwise assume responsibility for his future actions. He convinced the learned Deputy President that his resolve to choose an “option” which, if it were followed, would have removed any requirement for the instant application. He told the earlier Tribunal proceedings that the major cause of his offending was unresolved issues with alcohol abuse. He told this hearing that his subsequent offending is due to unresolved issues with illicit drugs. He told the earlier proceedings that he would refrain from further abusing alcohol. He told the instant proceedings that he will refrain from abusing illicit drugs.
The difficulty with that contention is that there is no independent, expert and reliable evidence that the Applicant has overcome his propensity to abuse either or both alcohol and illicit drugs. In the absence of such evidence and having regard to the unreliability of anything the Applicant may say about future abstinence from the abuse of any substance, very little, if any, weight can now be allocated to his contentions about being rehabilitated.
There is nothing in the material to demonstrate the Applicant has changed his long-established pattern of disregarding lawful authority. Indeed, this aspect of his conduct has persisted during his time in both criminal custody and immigration detention. One could reasonably expect that if placed in any such facility which is designed for the rehabilitation of inmates/detainees, the Applicant would have refrained from engaging in violent conduct. The opposite has occurred.
He convinced this Tribunal in October 2016 that he would abstain from alcohol and take responsibility for his actions. Instead, he contrived to have his Visa returned to him and commit another 12 criminal offences while a member of the Australian community. As mentioned, the offending continued unabated during his time in criminal custody and immigration detention. In effect, nothing in his pattern of offending has changed nor is there any independent evidence that the factors predisposing the Applicant to offend are under sufficient management and control such as to convince this Tribunal now that things will change.
To the extent others may purport to corroborate the Applicant’s contentions about being rehabilitated, little weight can be allocated to such evidence. In her statement, the Applicant’s partner says:[49]
“Despite his convictions, he is willing wholeheartedly to attend any type of rehabilitation or counselling that he may need to work towards the betterment of our future.”
[49] Exhibit 7, Character Statement [of the Applicant’s partner] dated 9 December 2019.
I have misgivings about the reliability and value of this evidence. The absence of any current and independent expert medical or psychological opinion about any such rehabilitation points to the reality that the Applicant has barely left “first base” in any process of rehabilitation. There is only his own contention of being “clean” and of otherwise being a “changed man”. Neither of these aspects has been evident during his time in both criminal custody and immigration detention. The other basis of my misgivings and unreliability of the purported corroborative evidence from his partner derives from what transpired during the Applicant’s cross-examination about the partner:[50]
[50] Transcript, 22 January 2020, page 33, lines 15-36 and page 34, lines 1-16.
“MS PEROTTI: Did you ever take any drugs while you were with family members or friends, prior to being incarcerated?
APPLICANT: Yes.
MS PEROTTI: Which family members or friends, ones that you are still in contact with now?
APPLICANT: No, no, no. I usually do drugs on my own.
MS PEROTTI: On your own?
APPLICANT: On my own, yes. I do them on my own and stuff like that. I don’t want anyone knowing, or family know, in that.
MS PEROTTI: None of your family know. So, does your partner know about your drug habit?
APPLICANT: I think so. I think she does, yes.
MS PEROTTI: Does she take any drugs?
APPLICANT: No. She doesn’t, Miss.
MS PEROTTI: She doesn’t?
APPLICANT: She doesn’t.
MS PEROTTI: Can I take you to tender bundle, page 182? Who is [name redacted]?
APPLICANT: Yes. [name redacted], that is my partner.
MS PEROTTI: That’s your partner?
APPLICANT: Yes.
MS PEROTTI: Because see at page 182 in the middle, there is a title that says, “A personal visitor was refused entry due to being tested positive twice on the ND Itemiser”. That visitor was [name redacted]?
APPLICANT: Yes. I think so.
MS PEROTTI: And she was refused entry on that occasion because she tested positive for drugs?
APPLICANT: Yes. She never uses drugs in her life. She has never touched the drugs in her life, Miss. Sometimes, you know, when you put too much perfume, it causes that.
MS PEROTTI: Sorry, if I can finish. At page 184 of those documents, the tender bundle?
APPLICANT: Which one, Miss.
MS PEROTTI: 184?
APPLICANT: 184.
MS PEROTTI: It states that [name redacted] registered positive for heroin?
APPLICANT: No. No way.
MS PEROTTI: But your evidence is that she’s never taken drugs?
APPLICANT: She’s never taken drugs.
MS PEROTTI: Do you accept that’s inconsistent with the evidence?
APPLICANT: Yes. No way. The machine they have at Villawood Detention Centre, it does it to a lot of boys’ and girls’ visitors.
MS PEROTTI: No, I understand. But do you accept that she’s been tested according to this report, twice?
APPLICANT: I didn’t even know that she got tested for heroin, I didn’t know that.
MS PEROTTI: She’s been registered positive reading for heroin on two occasions when she was tested and on that basis, was refused entry.”
The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
Two further things can be said about how the evidence transpired with regard to any assessment of the Applicant’s risk of re-offending. The first observation relates to the Applicant’s character statements sought to be relied on in this proceeding.[51] None of those character statements make any mention of the Applicant having received a “second chance” via this Tribunal’s decision to restore his visa status in 2016. None of those statements mention that this proceeding, in effect, represents a third such chance. None of the makers of those statements gave any oral evidence or proffered any opinion as to why they think the Applicant would – given his history of failure to take opportunities, now avail himself of yet another opportunity represented by this application. I thus agree with the Respondent’s submission: very limited weight should be given to those character statements to any extent they may relate to rehabilitation.
[51] See Exhibits 1–10 (inclusive) – Exhibit Annexure A.
The second observation relates to the two psychological/psychiatric reports relied upon in the earlier proceeding before this Tribunal in October 2016.[52] Both of those reports were before the previously constituted Tribunal and they both deal with the Applicant’s offending history. However, they are predicated on the Applicant’s offending history and specific circumstances as at the time those reports were written (i.e., April and July, 2016, respectively). The inevitable finding for present purposes has to be that given the date of those reports and the absence of any analysis or discussion about the Applicant’s post-2016 offending history and identifiable symptoms, very limited, if any, weight can be allocated to either or both of those reports in terms of them providing any insight about the impact or extent of harm to the community were the Applicant to re-offend. Likewise, neither of those reports can be relied upon for the purposes of assessing the Applicant’s future risk of re-offending. Accordingly, the Respondent’s contention is correct: little, if any, weight can be allocated to either or both of those reports for present purposes.
[52] See Supplementary Tender Bundle, TB21, Forensic Psychological Report by Caroline Hare dated 08/04/2016; TB23, Psychiatric Report by Dr Olav Nielssen dated 23/07/2016.
I am also mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[53]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[53] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
The Applicant’s offending and sentencing history clearly demonstrates he has been afforded multiple opportunities to modify and ameliorate his conduct. He has had the benefit of a graduated sentencing regime. He has also had the benefit of a very favourable outcome for an earlier cancellation of his visa in October 2016. He has failed to heed previous warnings and has failed to grasp opportunities. He has prioritised his predilection to abusing either or both alcohol and illicit drugs above responsibilities to his family and the broader community.
Instead, he has continued to persistently offend, even in the relative confines of criminal custody and/or immigration detention and, very seriously so.
The state of the evidence means that he is nowhere near convincing this Tribunal that he has engaged with a process demonstrative of any meaningful or effective treatment or other intervention-based therapies necessary to demonstrate that his risk of re-offending could somehow move downwards from its present very high level.
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether 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.
It is first necessary to identify the children actually or possibly relevant to this proceeding. As I understood the evidence, the Applicant has either a biological or other connection to the following children:
·the Applicant does have two minor children in Fiji. Those children comprise a son born in 2010 and a daughter born in 2013. In cross-examination, the Applicant was asked, “Have you had any contact with [names of children in Fiji redacted]?” The Applicant replied, “No”. These two children in Fiji are not relevant to this consideration and are not captured by paragraph 13.2 of the Direction;
·the only relevant children captured by the Direction for present purposes comprise:
otwo biological daughters that the Applicant has with his current partner. The first was born in November 2016 and the second in March 2018; and
oa biological son that the Applicant has from a previous relationship. This biological son was born in August 2012; and
oan unspecified amount of minor cousins/nieces/nephews. In his “Personal Circumstances Form”, in response to the question “Please state how many other relatives you have in Australia or overseas?”, the Applicant refers to 14 nieces/nephews and 18 cousins.[54]
[54] Exhibit 12, s 501 G-Documents, G10, page 51.
The Applicant’s evidence in cross-examination

This contention does not have much force with regard to the Applicant’s infant biological daughters given their age and consequent incapacity to express any such views. It also does not have much force with regard to the Applicant’s seven year old biological son because, apart from what the Applicant says, there is no evidence of any such views from that child either. As I have found, all of the relevant minor children for this application can be expected to maintain a relationship with their existing primary caregiver/s.
It is thus difficult to allocate weight to this sub-paragraph (f) in circumstances where none of the views of the relevant infant children are either known or are capable of being ascertained. Put simply, the Tribunal does not know the level of any adverse impact the prolonged, physical absence of the Applicant from their lives will have on them.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by any of the children as a result of any of the Applicant’s offending conduct – is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant (and his current partner and biological mother of the two infant biological daughters) which speaks of a harmonious domestic relationship that will be resumed were the Applicant to be returned to the Australian community;
(b)the absence of any convincing evidence about the parental role the Applicant has played and may continue to play in the lives of the three infant children (and nieces/nephews/cousins) were he to be returned in a physical sense;
(c)the reality that the Applicant has been physically absent from the life of the youngest infant biological daughter for all but four-five months of her almost two years life thus far;
(d)the reality that the Applicant has been physically absent from the life of the elder infant biological daughter for nearly half of her life;
(e)the reality that the Applicant has not played any sort of parental role in the life of his seven year old biological son;
(f)that at all material times, all of the relevant minor children for this application can be expected to maintain a relationship with their existing primary caregiver/s.;
(g)the absence of any independent or expert evidence about the adverse impact upon the children (particularly the biological daughters) as a result of the Applicant’s current or future absence from their lives;
(h)the slight level of weight I have attributed to factors (b), (c), (d) and (e) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the relevant minor children in Australia does weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a moderate level and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A.
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[59] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[60] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[59] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[60] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·the Applicant arrived in Australia in April 2009, just before his 15^th birthday. He is now 25 years of age;
·he has three minor biological children and an undisclosed number of minor nieces/nephews/cousins in Australia. He has minimal contact with his seven year old biological son. Each of the three biological children receive their primary care from their other biological parent. All of the Applicant’s minor nieces/nephews/cousins are primarily cared for by people other than him;
·he first sentenced in Australia in October 2011, some 2 years after his arrival;
·he received the benefit of non-custodial sentences from October 2011 to January 2015 at which time he was sentenced to a custodial term of imprisonment of six months for driving a motor vehicle during a period of disqualification;
·his offending has seen him before lawful authority in this country on approximately 15 separate occasions between October 2011 and August 2018, involving some 43 offences;
·his offending has been both very frequent and serious, often very serious. His offending has culminated in very serious offences of violence against members of the general public and the police force. Any of that offending, were it to be repeated, could realistically have the potential of serious or even catastrophic harm to members of the Australian community;
·his offending derives from unresolved issues with illicit drugs and alcohol. Without the benefit of any current, independent expert evidence, those unresolved issues can be (inexpertly) stated as: (1) a predisposition towards abusing illicit drugs and alcohol; (2) a lack of regulation of his impulsivity and emotional control; and (3) a predisposition towards refusing to respect both lawful authority and the personal, and property rights of others;
·he has previously gone through a process identical to the present application and received the benefit of this Tribunal – via its decision of October 2016 – restoring his visa status to him and allowing him to remain in this country;
·he has failed to experience any deterrent effect from the graduated sentencing process imposed on him in the course of his offending history;
·he has failed to grasp the opportunity of the “second chance” afforded to him by this Tribunal via its decision made in his favour in October 2016;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention, since approximately August 2018;
·for the totality of his offending in this country, the sentencing courts have seen fit to impose total cumulative custodial terms amounting to approximately eleven years and nine months;[61]
[61] It is accepted that some of those custodial terms had been ordered to be served concurrently with other like terms. This estimated figure of custodial time is expressed in cumulative terms.
·he is 25 years of age and has an offending history that runs for just over almost seven years. He has been offending for the entirety of his adult life. In round figures, for the seven years of his adulthood in Australia, he has committed approximately 43 offences which amounts to approximately six to seven offences per annum. Put another way, the total number of months between his arrival in Australia (April 2009) until the date of his most recent incarceration (August 2018) amounts to 104 months. The totality of his custodial terms approximates 11 years 9 months is 141 months. Thus, on one view, the totality of custodial terms imposed upon him represents 135% of his time here.
·the Tribunal cannot be reasonably expected to form any definitive view about the Applicant’s risk of reoffending other than it remains as it was prior to his most recent removal from the Australian community in August 2018;
·there is no current, independent or expert evidence before the Tribunal:
(i)providing any diagnosis of the extent of the Applicant’s predisposition to abuse alcohol and illicit substances;
(ii)the extent to which those unresolved and unmanaged substance abuse issues contribute to and are directly causative of his predisposition to offend, often in a serious way;
(iii)that those diagnosed factors are now the subject of an externally imposed and monitored regime of remedial therapy, treatment and management; and
(iv)that the Applicant has demonstrated any independently measured level of insight into his offending which makes it impossible for this Tribunal to find that his risk of re-offending is low;
·while there is evidence that the Applicant has previously engaged with treating professionals,[62] that process was undertaken for his previous (and identical) application before this Tribunal in October 2016. Those reports relate to the Applicant’s offending history some four-five years ago and were not sought to be relied upon in the instant application.
[62] See Supplementary Tender Bundle, TB21, Forensic Psychological Report by Caroline Hare dated 08/04/2016; TB23, Psychiatric Report by Dr Olav Nielssen dated 23/07/2016.
The Evolution of the Australian Community’s “Expectations”
Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community. Deputy President Block of this Tribunal, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[63]
[63] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction. The learned Deputy President thought this paragraph leads a decision-maker to:[64]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[64] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[65]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[My underlining]
[65] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[My underlining]
In Afu v Minister for Home Affairs (“Afu”),[66] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[66] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[67] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[68] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [69]
[My underlining]
[67] [2019] FCA 500.
[68] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[69] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[70]
[70] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[71]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[72]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[73]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[74]
[71] Afu at paragraph [85].
[72] FYBR at paragraph [42].
[73] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[74] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant has not been entirely dilatory during his time in this country. He particularises his 17 month involvement in the Australian workforce as follows:[75]
“From 01/18 To 06/18 – Removelist [sic] – [Name of business redacted]
From 04/17 to 12/17 – Concreter – [Name of business redacted]
From 11/16 to 03/17 – Steel fixer – [Name of business redacted]”
[75] Exhibit 12, s 501 G-Documents, G10, page 53.
He further particularises his contributions to Australian community and cultural activities on the basis that: “I volunteer to set up games for my youth club. I work in construction sites alot. My church group helps old people”[76]
[76] Ibid.
This Applicant’s unlawful conduct and resulting extensive criminal history has surely breached the expectations of the Australian community. He has, over some nine years, consistently, and often very seriously, failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the Applicant has made little to no positive contributions to the Australian community;[77]
(ii)the Applicant has lived in Australia for approximately ten years;[78]
(iii)the removal of the Applicant may have an adverse impact on his three minor biological children, his current de-facto partner and his infant nieces/nephews/cousins in Australia.[79]
(iv)the very serious nature of the Applicant’s offending to date to other people in the community, most notably women and police officers;
(v)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal and property rights of others, the dreadfully adverse effects of drug offending upon the Australian community, both in terms of individual harm and in terms of the community’s law enforcement and public health resources that it consumes;
(vi)the lack of current, independent and expert evidence measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vii)my finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[77] The Direction, paragraph 6.3(7).
[78] The Direction, paragraph 6.3(5).
[79] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations

The Applicant has not claimed to fear harm, and none of the evidence suggests a risk of harm, should he be returned to the Fiji. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:[80]
“52 … In any event, to the extent that this consideration weighs in favour of the applicant, it should be given limited weight and does not outweigh the protection of the Australian community or the expectations of the Australian community.”
[80] Exhibit 11, Respondent’s SFIC, page 15, paragraph [52].
The Applicant has spent the majority of his life thus far in Fiji until the age of 15. He completed his secondary schooling in Fiji up to Year 10 level. His offending commenced relatively shortly after his arrival in Australia. He arrived here in 2009 and commenced offending in 2011. In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances. As against that there is some measure of evidence that he has made some, albeit relatively minor, contributions to Australia via his 17 month employment history and his limited contribution to Australian community and cultural events. This would attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
To my mind, any genuinely discernible weight in favour of the Applicant pursuant to this Other Consideration (b) can only possibly derive from paragraph 14.2(1)(b). It is clear, on the weight of the numbers alone that the Applicant has a significantly sized family in Australia ranging from his current de-facto partner, his three biological children, infant nieces/nephews/cousins, his parents, sisters and a number of adult cousins, aunts, and uncles. It would not be correct to say that absolutely none of those family members would be impacted by the Applicant’s removal to Fiji. Accordingly, some measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
In his “Personal Circumstances Form”, the Applicant speaks of the impact of his removal on his family in these terms:[81]
“All my families would miss me alot. They would be worried about me and cause them to stress. Im always helping them in every way I can. Like mawing lawns, cleaning up outside their house and sometimes I help them with shopping. Now they will have to pay to get all this work done.”
[81] Exhibit 12, s 501 G-Documents, G10, page 51.
This written contention was inconsistent with the Applicant’s evidence in cross-examination which was to the effect that he was but one of many family members that live in the one household and that they would, if required, all work together and assist with the performance of these jobs were he to be removed from Australia. It transpired from the Applicant’s evidence that, for example, his brother also provided support and assistance to the parents and that the parents, in turn, provided assistance with care arrangements for the minor children of the wider family. I therefore think the Respondent’s contention is correct: “It is just not sustainable that the applicant’s absence would result in a financial burden or a burden to the running of that household in the manner that he advanced in his personal circumstances form”.[82]
[82] Transcript, 22 January 2020, page 48, lines 25–28.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, victims such as the woman who was on the receiving end of the Applicant’s serious violent conduct on 2 February 2018 in Cabramatta (in the driveway of her own property) may have – via any victim impact statement – facilitated the possibility of allocating (or not allocating) any weight to this Other Consideration (d).
However, without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact of the Applicant’s continued presence in Australia would have on any of his victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(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.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a man of 25 years of age. In terms of diagnosed medical or psychological conditions, the material discloses that in response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[83] While I accept that medical care and governmental social support in Fiji[84] may not be at the same level as that available to the Applicant in Australia, he will have access to those things in the context of what is generally available to other citizens of Fiji. Thus, the age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[83] Exhibit 12, s 501 G-Documents, G10, page 54.
[84] Section 14.5(1)(c) of the Direction.
With further specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Fiji. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Fiji.
In his material, the Applicant speaks of adverse outcomes were he to be returned to Fiji as follows:[85]
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘Yes’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
I would be lost. I would lose all my family. I would have to start again.
Are there any other problems you would face if you have to return to your country of citizenship?
I would not have a place to live in.
I would never get a job.
I wouldn’t have anyone to help me.”
[85] Ibid, G10, page 55.
It is clear from the material that the Applicant has completed schooling to the end of Year 10 in Fiji and although he does not mention it in his “Personal Circumstances Form”, it emerged in the evidence at the hearing that the Applicant does have family in Fiji, specifically, on his mother’s side. In particular, he told the hearing that he had previously lived in Fiji with those relatives on his mother’s side while he was not attending boarding school in Fiji and, further, that upon at least one of his several return visits to Fiji (i.e., post 2009) he has visited that family. Thus it cannot be said that the Applicant would be devoid of any family support in Fiji.
Not only would he have family support in Fiji, family responsibilities await him there as well. This is because he has two minor children in Fiji. The Applicant has met the elder of those two infant children (a son). He has never met the younger of them (a daughter). He gave evidence at the hearing of an intention to re-establish contact with his two infant children in Fiji. It can thus be fairly said that his removal to Fiji would facilitate the re-establishment of his contact with those two children which could not, in any meaningful way, be regarded as an impediment to his removal.
While the Applicant may face some difficulty in re-establishing himself in Fiji, this factor would present as a short-term hardship and would not preclude his successful re-settlement there.
The Applicant has an employment history in Australia, albeit a short one. He has worked in the construction and removalist industries in this country and there is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in either industry upon his return to Fiji.
I am thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: limited weight;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: neutral.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding one-hundred and seventy-eight (178) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

....................................[SGD]....................................
Associate
Dated: 31 January 2020

Date of hearing: 22 January 2020

Applicant: In person

Solicitors for the Respondent: Mr Monica Perotti
Sparke Helmore Lawyers
“A”
Exhibit Annexure

Exhibit No.

Dated Lodged

Filed By

Document Description

1

08/12/2019

App

Character Statement

2

12/12/2019

App

Character Statement

3

11/12/2019

App

Character Statement

4

Undated

App

Character Statement

5

7/12/2019

App

Character Statement

6

09/12/2019

App

Character Statement

7

09/12/2019

App

Character Statement

8

09/12/2019

App

Character Statement

9

11/12/2019

App

Character Statement

10

08/12/2019

App

Character Statement

11

06/01/2020

Resp

Statement of Facts, Issues and Contentions

12

29/11/2019

Resp

G-Documents, pp 1-135

13

06/01/2020

Resp

Tender Bundle, pp 1-194

14

09/01/2020

Resp

Further Tender Bundle, pp 195-236

15

21/1/2020

Resp

Supplementary Tender Bundle, pp 237-293

[2020] AATA 111

31 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date of hearing:	22 January 2020
Applicant:	In person
Solicitors for the Respondent:	Mr Monica Perotti Sparke Helmore Lawyers

Exhibit No.	Dated Lodged	Filed By	Document Description
1	08/12/2019	App	Character Statement
2	12/12/2019	App	Character Statement
3	11/12/2019	App	Character Statement
4	Undated	App	Character Statement
5	7/12/2019	App	Character Statement
6	09/12/2019	App	Character Statement
7	09/12/2019	App	Character Statement
8	09/12/2019	App	Character Statement
9	11/12/2019	App	Character Statement
10	08/12/2019	App	Character Statement
11	06/01/2020	Resp	Statement of Facts, Issues and Contentions
12	29/11/2019	Resp	G-Documents, pp 1-135
13	06/01/2020	Resp	Tender Bundle, pp 1-194
14	09/01/2020	Resp	Further Tender Bundle, pp 195-236
15	21/1/2020	Resp	Supplementary Tender Bundle, pp 237-293