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

Faavesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1872 (24 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2276
Re:Michael Faavesi
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 June 2021
Place:Sydney

The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.....................................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations – impediments to removal – impact on victims – strength, nature and duration of ties to Australia – support from Applicant's partner – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) s 501 and 501CA
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
DNK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1157
Omar v Minister for Home Affairs [2019] FCA 279
PQSM v Minister for Home Affairs [2019] FCA 1540
QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820
Suleiman v Minister for Immigration and Border Protection
Wang and Minister for Immigration and Border Protection [2014] AATA 89
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 June 2021
BACKGROUND

On 18 November 2020 the visa held by Mr Michael Faavesi (the Applicant) was cancelled automatically under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). This automatic cancellation was occasioned by the Applicant having been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Paragraphs 501(6)(a) and 501(7)(c) of the Act.
The Applicant made representations to the Minister (the Respondent) on 15 December 2020, seeking to have this cancellation revoked but on 6 April 2021 a delegate of the Minister refused the revocation request.
On 14 April 2021 the Applicant sought review of the delegate’s decision in this Tribunal which heard the matter on 8 June 2021. The Applicant was not formally represented at the Tribunal but was assisted in his presentation by his partner Ms Josephine Lancaster.
The statutory scheme relevant to such applications states that, if the Tribunal is satisfied that the Applicant is not a person of good character because of his having been sentenced to a term of imprisonment of more than 12 months, it may nevertheless set aside any decision not to revoke a visa cancellation if it is persuaded that there is “another reason why the original decision should be revoked” (subparagraph 501CA(4)(b)(ii)).
In making its decision, the Tribunal is bound to give effect to the statement of government policy which is set out in Ministerial Direction 90.[2] This is a set of instructions issued by the Minister pursuant to subsection 499(1) of the Act and any decision-maker (in this instance, the Tribunal) “must comply with a direction” so given (subsection 499(2A)) for a valid decision to be made.[3]
[2] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Ministerial Direction 90) commenced on 15 April 2021 and must be applied in this case, although on the date of the lodgement of the application in the Tribunal a previous Ministerial Direction (No. 79) was in effect.
[3] PQSM v Minister for Home Affairs [2019] FCA 1540 at [22].
FACTS
The Applicant is 30 years of age and was born in Samoa. He is a citizen of New Zealand. At age three years he moved from Samoa to New Zealand where he describes his young life as traumatic and subject to acts of emotional and physical abuse resulting in him being taken into foster care at age seven years. His foster care experiences were little better. He spent much of his life in New Zealand being homeless, living on the streets, becoming involved with the use of illicit drugs and suffering depression and mental unwellness.[4]
[4] Applicant’s Statutory Declaration dated 13 May 2021; Report of Mr Awit (clinical psychologist), G-documents at 78.
He migrated to Australia on 7 February 2013 (aged 22 years) and is the holder of a Special Category (Class TY) (subclass 444) visa.
RECORD OF OFFENCES
The Applicant has a serious record of driving offences in Australia commencing in July 2014, just over a year since his first arrival.[5]
[5] Supplementary Evidence Bundle at 353-363; G-documents at 30-33.
There are at least seven instances of the Applicant being before the Court for either driving without a licence or driving while disqualified. On at least three occasions there were charges of driving with illicit drug present in his blood and two with PCA (prescribed content of alcohol). In addition, there are numerous further traffic offences which might be categorised as less serious.
At no stage has the Applicant ever held a valid driver’s licence in Australia. He states that this is a result of his not having any primary identity documents to present to the licencing authorities. He says that he has attempted to get these from the New Zealand authorities but they cannot assist him until he produces original documents from Samoa which he claims are lost.
To this must be added several counts of possession of illicit drugs and “knowingly/recklessly direct criminal group assist crime”.
Eventually, on 27 August 2020, the Applicant was convicted in the Local Court of New South Wales of two counts of Drive motor vehicle during disqualification period - 2nd+ off, Drive with low range PCA – 2nd+ offence and Drive with middle range PCA – 1st + off. The original sentence of an aggregate 16 months imprisonment was varied on appeal in the District Court of New South Wales to an aggregate of 14 months imprisonment.
The Sentencing Magistrate summed up the position, taking into account the whole of the Applicant’s driving record. She said, expressing her obvious frustration at the behaviour of the Applicant and the danger which he posed to others by his behaviour:
Now, let us go back to basics. You do not have a licence here. So whether or not you are disqualified or not is irrelevant, in a way. You were disqualified because you kept driving unlicensed, and then the Court finally had to formally disqualify you because that every time you do drive, the penalties just get worse and worse and worse. And keep driving you did. And you drove with drugs present in your system and you were disqualified. The problem with that is - and I accept what is put in the psych report, in your psychological report, and I do not mean to diminish the hardship you faced as a young person.
The irony about that - and I am just going to turn to that, if I can, for a moment - is I read in the report that you have two young children yourself. Do you not think you are doing the same thing to them that was done to you? Do we not want, as parents, better for our children than we had for ourselves? They are in New Zealand, are they not? And yet you are here. So all that sense of that you felt abandoned and you were abused because of the 5 system, if I can put it that way, you are doing that to your own family, and those children did not ask to be born. You made choices. And every time you get behind the wheel, you are making choices.
The trouble is, in relation to your driving - and I am going to now focus on these two occasions - you were making choices for other people. By driving with a reading of .144 in your - who knows if you had not have been pulled over what would have happened around the corner? You might have missed the corner, wiped some family out. You have taken away their choices at a time you had no business being on the road. So much so that a Court previously had put you on an intensive corrections order. I am fairly certain the Court on that occasion explained to you, chapter and verse, that this is a gaol sentence, that effectively we are suspending it on the conditions that you do certain things.
A pretty basic one would be not to continue to drive when you are disqualified. But you did not do it once. You did it twice, within a week. Less than a week. The words that you said to the police officer on 13 June at midnight were "I fucked up", and then yet at 10 o'clock on 18 June, you "fuck up" again. And I apologise for the language, but that is your language that you said to the police. And you said to the police - they pulled you over, you said "I don't have a licence and I'm drunk", and you hung your head down. So you knew. You knew. There is a conscious decision you made, and what you were doing, actually, was gambling. And the reason I say that, because you are a gambler.
So you were rolling the dice about whether or not you get caught or not. Because I would hazard a guess, and I am not sentencing you for other offences, truly I am not, but you would have to think "Wow, the police are getting a 100% strike rate. Every time Mr Faavesi drives, they pick him up". I do not think, as effective as the New South Wales Police and Highway Patrol are, I am pretty sure they do not get people 100% of the time. The fact that you roll the dice suggests that you drive a lot more than that, and sometimes you get caught and sometimes you do not, and you are willing to risk the penalties. I think the thing is, up till now, you had been able to persuade the Court that you are a person who is rehabilitating themselves and you are not going to do it again. But you are.[6]
[6] G-documents at 36-37.
The Tribunal cannot add anything more to the learned Magistrate’s eloquent exposition of the Applicant’s behaviour and his attitude to his responsibilities as a driver and an individual at that stage of his life.
The Respondent draws attention to the fact that the Applicant has a similar record in New Zealand with a series of convictions between 2007 and 2011:
Furthermore, a New Zealand Police report dated 16 December 2020 shows that Mr FAAVESI had a considerable criminal record in that country before coming to Australia. In 2007 and 2008 he appeared as a juvenile on four charges of Unlawful take a motor vehicle and Theft ex person (under $500); all charges were proven and he was sentenced to social welfare supervision, ordered to undertake community work and pay reparation. He also appeared as a juvenile on charges of Drove a motor vehicle in a danger manner and Breath alcohol level over 400, for which he was disqualified from driving.
Mr FAAVESI continued to offend as an adult in New Zealand, appearing in court on nine occasions between 2009 and 2011, when he received convictions including:
- 14 February 2011 – Unlawful takes motor vehicle, reparation $400 and home detention for six months.
- 14 February 2011 – Drove with Excess Breath Alcohol, 3rd or subsequent (two counts) six months home detention and disqualified from driving.
- 16 November 2011 - Unlawful takes motor vehicle, 100 hours of community work and reparation $400
- 15 June 2009 – Demands to Steal (Manually) – 150 hours of community work.[7]
[7] G-documents at 22.
The term of imprisonment imposed on the Applicant means that he clearly fails the character test under subsection 501(3A) of the Act. This means that the Applicant must establish that there is “another reason” for the cancellation decision to be revoked. As explained above, this must be done within the framework of Ministerial Direction 90.
As explained in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) (at [13]-[15]):
The Preamble applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.1 In particular, the Direction provides inter alia that:
being able to come to or to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
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 for a short period of time.
Part 2 of the Direction elucidates four primary considerations which should generally be given greater weight than the other considerations:
protection of the Australian community from criminal or other serious conduct;
whether the conduct engaged in constituted family violence;
the best interests of minor children in Australia; and
expectations of the Australian community.
Clause 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
international non-refoulement obligations;
extent of impediments if removed;
impact on victims; and
links to the Australian community, including:
strength, nature and duration of ties to Australia; and
impact on Australian business interests.
The Tribunal is required to consider each of these items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, it stated in SZJSS that:
[t]he weighting of various pieces of evidence is a matter for the Tribunal.[8]
[8] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criteria, where there are competing assessments, it becomes a matter of the Tribunal engaging in a process of “calculus”[9] to arrive at a final determination.
ASSESSMENT OF CRITERIA IN MINISTERIAL DIRECTION 90
Primary considerations
[9] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Protection of the Australian community
The Tribunal must consider both the nature and seriousness of the conduct in question and the risk of reoffending and any danger that poses.
The imposition of a custodial sentence, always a last resort for the Courts, over a series of driving offences, demonstrates that the Applicant’s offending conduct meets the test of being serious (mis)conduct.
The need to protect the Australian community from people whose behaviour constitutes a threat to safety and indeed life itself as a result of their dangerous driving habits is obvious. Each year thousands of Australians lose their lives or suffer injury on the roads.
This Tribunal has addressed this question in numerous occasions.[10] In Nguyen the Tribunal stated:
[T]he pattern of behaviour demonstrated by the series of driving offences during his time in Australia demonstrates that he has a singular disregard for the safety of himself and others on the road. It demonstrates also a disregard, more generally, for laws which are in operation to protect other citizens and a continuing willingness to place himself outside the rule which govern the behaviour of citizens in Australia.[11]
[10] Apire and Minister for Immigration and Border Protection [2014] AATA 193; Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347; QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820;
[11] Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1157 at [32].
In Wang the Tribunal said that road safety laws are vital because, “[t]hose laws go to the essential safety of the community.”[12]
[12] Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7].
In Bartlett the Tribunal put matters of driving offences in a broader context stating:
The Applicant’s driving offence may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. …[H]is failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.[13]
[13] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [45].
In Zaya the Tribunal remarked on the potential consequences of individuals driving under the influence of alcohol and by implication illicit drugs and generally ignoring the road rules when it said:
There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.[14]
[14] Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 at [54].
The Applicant might have been able to ameliorate the negative impact which this criterion must have in relation to assessing his application had he in any way demonstrated that he had taken positive steps to deal with the problems which have been identified prior to his being sentenced.
When asked as to why no such programmes had been undertaken the Applicant indicated that at the relevant time he was in a relationship which he describes as “toxic” and where frequent arguments with his then partner (Ms Al Saleh) inhibited him from engaging with any such services. He informed the Local Court that he had recently ended this relationship because “I felt as though this relationship was not working for me and would often lead to me making the wrong decisions.”[15]
[15] Supplementary Evidence Bundle at 112.

There is no evidence that the Applicant had participated in any rehabilitation programmes or courses other than a Traffic Offenders Rehabilitation programme.[16]
[16] G-documents at 71 and 76; Supplementary Evidence Bundle at 314-316.
Despite the benefit of the Courts having granted him numerous bonds, section 10A dismissals (conviction with no other penalty imposed), intensive correctional orders or community service orders, the Applicant continued to offend until the Court was left with no alternative but imprisonment.
In November 2018, the Applicant engaged with a Mr Chafic Awit, a registered psychologist, who provided a professional diagnosis and assessment to the Burwood Court. He found that the Applicant suffered Major Depressive Disorder with Anxious Distress and Substance Use Disorder and Gambling Disorder – in case of the latter two at a severe level.[17] He recommended an extensive treatment plan to address these multiple challenges.[18] There is no evidence that the Applicant ever took steps to commence such a plan and in any event he continued to commit numerous offences after that date.
[17] Supplementary Evidence Bundle at 32.
[18] Ibid at 41.
In a later (14 December 2020) and more comprehensive report Mr Awit concludes:
It is the professional opinion of the writer that Mr. Faavesi requires ongoing Psychological intervention. If this is provided, [t]he risk of reoffending will be significantly reduced. The fear of being deported is exacerbating his current condition and would likely lead to further worsening of this condition.[19]
[19] G-documents at 84.
Corrective Services (NSW) made a Sentencing Assessment Report in which it rated the Applicant’s risk of reoffending as Medium to Low. However, it also assessed that the Applicant was “unsuitable to undertake community service work for the following reason: poor response to current community service work conditions.”[20]
[20] Supplementary Evidence Bundle at 110.
This report was prepared for a Court date in August 2019 but again, the Applicant committed offences after that date and that assessment.
The Tribunal notes that apart from the driving offences, the Applicant has also been convicted of offences involving drugs including offences connected with an association with a criminal gang involved in the commercial supply of cannabis.[21] In addition, while on bail, the Applicant committed an assault upon a couple at a railway station in November 2018.[22] There is evidence in relation to all these offences that the Applicant was using alcohol and drugs at the relevant times.
[21] Ibid at 85-91.
[22] Ibid at 141-142.
As will be explained below, the extent to which the Applicant has taken to heart the experiences of incarceration and the change in his circumstances which his relationship with his current partner have brought about, are persuasive to the Tribunal that although no risk can ever be rated as zero, in this instance, the risk of the Applicant reoffending is low. The Tribunal accepts the evidence that since he has experienced the consequences of his actions his level of understanding and remorse are genuine and at a level to be protective against further misconduct.
Finding on criterion: This counts against the Applicant but not to a major degree as it is ameliorated by a finding that the risk of future offending is low.
Family Violence
In its SFIC the Respondent did not advance any argument against the Applicant on this ground and held the criterion to result in a “neutral” weighting.[23] However after that SFIC was submitted the Respondent became aware of two Police reports which indicated that the Applicant had been the subject of police attention because of possible incidents of family violence.
[23] Respondent’s SFIC at [20].
In both instances the partner involved was a Ms Sarah Al Saleh. On the first occasion, 4 April 2018, an anonymous call brought the Police to the Auburn residence of the couple where it became apparent that the couple had had a major altercation resulting in a large number of household items being smashed and the premises suffering some structural damage. The Police report confirms the partner’s statement that “it was only an argument and that no one was physically assaulted, the victim also claims she has no fears for her safety.”[24] The Police left the scene and took no further action.
[24] Supplementary Evidence Bundle at 388.
The second incident, again as a result of an anonymous call to the Police took place in August 2018 when the Police attended at the couple’s residence at Guilford. When they arrived, they found the female partner in the shower. She initially refused to speak to them but eventually did, emerging from the shower and telling them to mind their own business and leave (in somewhat explicit and graphic tones) and then returned to having a shower. Again, the Police took no further action.[25]
[25] Ibid at 383-384.
The Tribunal notes that the definition of “family violence” given in the Direction encompasses much more than just acts of physical violence. It also goes to matters such as making derogatory taunts, intentionally damaging property or acting in a controlling manner. The Tribunal itself has recognised that:
[s]uch forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[26]
[26] Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 at [48].
There is however, no evidence to suggest that the Applicant himself has ever committed acts of family violence as described in the Direction.
Finding on criterion: The Tribunal adopts the Respondent’s initial allocation of “neutral” weight to this criterion.
Best interests of minor children in Australia
In representations to the Minister, the Applicant has identified a number of minor children in Australia who he claims would be impacted were he required to leave the country.
In the first instance there are two children, aged 15 years and 10 years who are the children of his current partner Ms Josephine Lancaster. The father of the children is Mr Curtis Wilson. There is also a third child of Ms Lancaster’s from a previous marriage who is now 19 years of age.[27]
[27] Statutory Declaration of Josephine Lancaster dated 14 May 2021.
There are several issues arising in determining the exact nature of the Applicant’s relationship with Ms Lancaster:
(a)In the Applicant’s original request for revocation (dated 15 December 2020) he writes that:
For the past 3 years, I have been in a loving relationship with my fiancée Josephine. Through our relationship I have tried to change my mindset, wanting to be more successful and live a positive life. Our relationship has had it’s ups and downs but we have managed to work through it. Josephine and my stepchildren have given me chance of showing love and being loved.[28]
This would imply a relationship with Ms Lancaster commencing sometime in 2017. However, he also says that he has known her for a total of six years.[29]
(b)In Mr Awit’s report of 20 December 2018 he records, “[the Applicant] advised that he is currently in a relationship with Ms Sarah Al Saleh.”[30]
(c)Ms Al Saleh is noted as being the Applicant’s partner and was with him in November 2018 when he committed the assault at the railway station.[31] She was previously described as his “girlfriend” in a Police Report of 19 July 2017.[32]
(d)In a letter to the President Magistrate at Burwood Court dated 6 August 2019 the Applicant writes, “I have ended a long-term relationship with my former partner. I felt as though this relationship was not working for me and would often lead to me making the wrong decisions.”[33] It became clearer during the Tribunal’s proceedings that this relationship was with Ms Al Saleh.
(e)In a letter to the Presiding Magistrate at Parramatta Court dated 26 August 2020 Ms Lancaster writes: “My name is Josephine and I have had a very close relationship with Michael for approximately six years.”[34]
(f)In her letter to this Tribunal dated 14 May 2021, Ms Lancaster writes: “I have known Michael for approximately six years and I have been in an intimate relationship with Michael for the past four years, on and off.”[35]
(g)Ms Lancaster’s ex-partner, Curtis Wilson writes: “I have known Mike for approximately three years since the commencement of his relationship with Jo…”[36]
[28] G-documents at 56.
[29] Ibid at 64.
[30] Supplementary Evidence Bundle at 34.
[31] Ibid at 140.
[32] Ibid at 179.
[33] Ibid at 112.
[34] Ibid at 317.
[35] Statutory Declaration of Josephine Lancaster dated 14 May 2021.
[36] Statutory Declaration of Curtis Wilson dated 14 May 2021.
It is hard to determine exactly when the Applicant’s relationships with Ms Al Saleh and Ms Lancaster began or overlapped. The most coherent explanation is that the Applicant was in a tempestuous relationship with Ms Al Saleh from approximately May 2017 to November/December 2018 and that he first met Ms Lancaster in 2016 (on a casual basis) and started a more permanent relationship with her in November 2018. Ms Lancaster was clear in her evidence to the Tribunal that she was aware of Ms Al Saleh and of the nature of the relationship with the Applicant.
The Tribunal notes that when the Applicant was released on bail in September 2018 (having been on remand), his bail conditions included provision that he was to reside “with Ms Sarah Al Saleh, and nowhere else.”[37]
[37] Supplementary Evidence Bundle at 22.
Although their relationship has continued since the end of 2018, in her submission to the Tribunal Ms Lancaster notes that “Michael has at times cut off communication with all of us” by which she meant herself, the Applicant’s brother and closest friends and his usual circle of acquaintances. These “cut off” periods may last a few days or a little longer but are not overly prolonged.
The father of Ms Josephine’s children, Curtis Wilson writes that he shares custody of the children with Josephine and that they have been separated for six years. Their arrangements are that Mr Wilson has custody of the two boys for three out of every four weekends. He describes the Applicant as “an integral part of our children’s lives” and is supportive of him continuing in that role.[38]
[38] Statutory Declaration of Curtis Wilson dated 14 May 2021.
Ms Lancaster states that the Applicant plays positive role in the lives of her children and that they have bonded with him. The Applicant acts as a “babysitter”, is seen as a “father figure” and described as “kind-hearted” and “hardworking”. He makes a financial contribution to the family whenever he is in work. She states that the children are both exceptionally attached to the Applicant – they keep asking when he will return. The children and the Applicant appear to keep in touch daily from the Applicant’s place of detention and while the children wish to visit him both the Applicant and Ms Lancaster are not supportive of their visiting a detention centre.
Some measure of the Applicant’s approach to dealing with the young sons may be gleaned from the content of a letter which he wrote to them while in the Glen Innes Correctional Centre.[39] He writes (literally):
Thank you very much for the birthday cards. Hope you boys have been behaving and been good to your Mum. I need you guys to take care of her well I’m away untill I return… I hope you had a good birthday and your parents spoilt you? Your not a little boy anymore so make sure you respect, listen and always do what your told from your Mum & Dad.. Missing you guys. I miss fishing and playing GTA all day LOL.. Especially missing the food.. I would kill for some McDonalds, KFC and some island food mmmmmm making myself hungry now LOL..
[39] The exact date cannot be ascertained but the Applicant was in Glen Innes Correctional Centre from 1 December 2020 to 23 March 2021 (with intermittent transfers to Clarence CC) and the letter must post-date his birthday which was 15 February. Supplementary Evidence Bundle at 339.
After a further part of the letter addressed to Ms Lancaster’s adult daughter he concludes:
Please do not reply to this letter. Never want to write again.. first and last!
The Applicant has also identified nine nephews and nieces, being the children of his brother and sister with whom he claims a close relationship. He writes to the effect that he used to see them every day when he worked with his brother and that otherwise “my fiancée and I help out whenever we can” and when their parents are too busy he takes them to the park on adventure walks or fishing.[40]
[40] G-documents at 68.
His sister’s children are aged five years, three years and 10 months respectively, whereas his brother’s children are aged 13 years, 12 years, 11 years, six years, five years, three years, two years, 10 months and six months respectively.
It cannot be said from any of the evidence that the Applicant’s role in relation to his nephews and nieces is much more than a generally avuncular one and he has no direct or ongoing responsibility for their care, support or maintenance. Nevertheless, he does play some limited role in their lives, perhaps best described as a “default babysitter”.
In relation to both Lancaster children the Tribunal finds that each would be significantly impacted by the absence of the Applicant in their lives; there is nothing that can be ascertained in relation to Ms Lancaster’s child by her previous marriage; and in relation to each of the nine nieces and nephews there would some degree of impact upon them were the Applicant removed from Australia.
Finding on criterion: The best interests of the minor children weighs heavily in favour of the revocation of the visa cancellation.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that the Australian community expects non-citizens to obey Australian laws while in Australia; where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative.[41] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
[41] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[42]
[42] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to his (or any other consideration) is a matter for the Tribunal itself to determine.
Finding on criterion: This counts against the Applicant, but the weight assigned to it by the Tribunal is low.
Other considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that, “[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[43] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[44]
[43] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
[44] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[45]
[45] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
Although these authorities refer to earlier versions of the Ministerial Direction they are still apposite in the consideration of Ministerial Direction 90.
Non-refoulement obligations
These do not generally arise in relation to the possible repatriation of New Zealand citizens to that country unless genuine fears of harm are raised by applicants, in which case they must be considered by the Tribunal, even if they are only slightly alluded to or poorly articulated.[46]
[46]Omar v Minister for Home Affairs [2019] FCA 279 at [82].
In his SFIC (at 38) the Minister states, inter alia:
The Minister also observes that the cancellation of the visa that is the subject of this review application does not relate to a protection visa, and that the applicant is able to apply for a protection visa in the event of an adverse decision.
That may be so, but the Tribunal understands judicial authority as requiring it to give consideration to claims raised in relation to non-refoulement matters regardless of whether or not an applicant is able to apply for a protection visa at a later stage.
In the supporting documentation to his Request for Revocation of a Mandatory Visa Cancellation on 15 December 2020, the Applicant claimed:
I had decided to move to Australia to start fresh and create a more positive life experience. Prior to leaving NZ I had death threats from gang members and feel this is still very much a concern should I return.[47]
[47] G-documents at 74.
This does not entirely comport with the life history of the Applicant recorded in the report of Mr Awit. In that narrative, the principal cause or threat of physical harm to the Applicant appeared to be members of his own family and his sole reference to bike or other gangs is to the effect that:
Mr. Faavesi advised that a lot of the Foster care parents were affiliated with Bikey gangs, and the Foster situation was a front to gain further money.[48]
[48] G-documents at 78.
Apart from that one reference in the letter to the Minister the Applicant has not further raised issues of threats to his safety on return to New Zealand nor given any further details of why any gangs would continue to be interested in him after some seven years continuous residence in Australia.

Nevertheless, in his oral evidence the Applicant continued to maintain that he had concerns for his safety in relation to possible threats from such elements whose members still had contacts with members of his immediate community. There was some support for this concern offered in the Statutory Declaration of his co-worker Arno Chao who had some similar personal concerns in this regard.[49]
[49] Statutory Declaration of Arno Chao dated 14 May 2021.
Finding on criterion: On balance, given this variety of evidence the Tribunal regards this criterion as counting neither for nor against any decision of revocation.
Extent of impediments if removed
The Respondent dismisses these concerns on the basis that the Applicant is a young, fit person who would have no significant difficulty in finding employment in New Zealand. Moreover, he is familiar with the language, customs and mores of that country. Finally, he has an extensive network of family members still residing there. The Respondent says the Applicant would suffer no discrimination or disadvantage on return.[50]
[50] Respondent’s SFIC at [39].
The Applicant dismisses reference to his family. While he agrees that he has a mother, her current partner, an elder brother and some cousins in New Zealand he testifies that they have little to do with each other. Moreover, he was separated from his biological family at an early date because he suffered abuse and was placed in foster care. He attests that he rarely speaks with his mother and both she and is brother have responded negatively to any suggestion on his part that they might provide accommodation or support for him were he to return to New Zealand. The Applicant also makes the point that while he has a daughter in New Zealand (approximately 16 years of age) he has had no contact with her because her mother effectively prevents this.
The Tribunal accept this, but equally accepts the Respondent’s points about employment prospects, access to services and employment services.
What is however in issue is the extent to which the Applicant would suffer any impediment in terms of being removed from direct contact with Ms Lancaster and her children. Ms Lancaster testified that while she would wish to live with the Applicant, her primary commitment is to be with her children. She testifies that the children’s biological father, Mr Wilson, would not consent to the children being relocated to New Zealand and this is affirmed in Mr Wilson’s own Statutory Declaration of 14 May 2021.
There would be a real (practically non-rectifiable) impairment suffered by the Applicant were he to be separated from Ms Lancaster and her children whose lives, coincidentally would also be impaired.
Finding on criterion: It is weighed by the Tribunal as counting significantly in favour of the revocation of the cancellation decision.
Impact on victims
In DNK20 the Full Federal Court accepted the Minister’s submission that the analogous sub-paragraph of previous Ministerial Direction 79 (sub-paragraph 14.4(1)) required consideration of the “impact on victims derives from permitting an offender to remain in Australia, not from affirming the cancellation of the visa” and that properly constructed this criterion “is concerned with the impact on victims of a decision to revoke the visa cancellation, not vice versa.”[51] Paragraph 9.3 of Ministerial Direction 90, although slightly reworded is essentially in the same terms.
[51] DNK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 at [27].
Finding on criterion: As there are no identified “victims” in this application it is entirely neutral in terms of any assessment by the Tribunal.
Links to the Australian community
This criterion has two limbs: the strength, nature and duration of ties to Australia and any impact on Australian business interests.
The Respondent concedes that this criterion should be given “some weight by the Tribunal” but not to the extent of outweighing the negative impact of other considerations.[52]
[52] Respondent’s SFIC at [41].
The Applicant has lived in Australia since 2013 when he arrived aged 22 years. He has worked when work was available in the construction industry, although his visa status prevented him from work in some instances. He has not been in receipt of Australian welfare benefits.
He has extensive family ties in Australia (as distinct from New Zealand). His sister, Loretta Ama Mua writes:[53]
There is a saying that goes “O le l’o l mata o le tama o le teine”, “The pupil of the brother’s eye is his sister” and if there is one thing Mike is a living testament to, it is this proverb. I am a mother of 3 children, all under the ages of 6. With just enough to put my 2 younger boys through school and to put food on the table, Michael has financially supported me throughout the years, with helping me find a home, finding my first job as a graduate out of high school back in 2013. He had the responsibility of looking after me and made sure I was good always. From a perspective of a Father, he has always ensured my children were well looked after, just as he would with his own.
[53] Statutory Declaration of Loretta Ama Mua dated 14 May 2021.
Mr William Duffy provided both a Statutory Declaration[54] and oral evidence to the Tribunal attesting to his close friendship with the Applicant and the fact that he was in a position, through his own employers to offer the Applicant a job were he to be released from detention. He also attested to the Applicant’s role with Ms Lancaster and her children. He observed that over the 7 or 8 years of their friendship he has seen positive signs of growth and maturity in the Applicant and they had discussed opportunities for the Applicant to participate in alcohol and other drugs (AOD) programmes.
[54] Dated 12 May 2021.
The evidence is that all the significant ties in the Applicant’s life are in Australia and that there are no meaningful ties anywhere else.
No weight can be given to the element related to impact on Australian business interests as the Ministerial Direction itself confines this to instances which “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
Finding on criterion: Nevertheless, this weighs as counting significantly in favour of the revocation of the cancellation decision.
Beyond the statutory considerations
Although an application for revocation of a visa cancellation must be made on the basis of consideration of the criteria set out in the Ministerial Direction, it is not prohibited for the Tribunal to consider other matters which have helped it in assessing those criteria.
Ms Lancaster
The Applicant’s partner Ms Lancaster not only provided letters of support for the Applicant but also appeared in the Tribunal on his behalf. She impressed the Tribunal as a person of considerable strength and competence. She has extensive experience working in the social welfare area for the Salvation Army and is currently undertaking studies for a Graduate Certificate in Forensic Mental Health through Charles Sturt University. In her testimony she revealed that she had paid for some of the Applicant’s medical expenses (he is not Medicare eligible) including the most recent visit and assessment by Mr Awit.
Ms Lancaster first became friends with the Applicant’s brother and his family when they became neighbours of hers in St Peter’s in about 2013. She first met the Applicant on a “casual” basis in about 2016 and entered into a more settled relationship with him at the end of 2018.
She was frank and open about the nature of their relationship, admitting that they had their ups-and-downs and occasional time apart. The couple have not cohabited, although the Applicant has proposed marriage to Ms Lancaster and any future arrangements are to be worked out. She is in the process of applying for Australian citizenship although her three children are Australian citizens.
In her Statutory Declaration she writes:
We have identified some services that Michael has begun to try and link in with by calling for information and applying to be part of the programs offered. We plan on addressing his AOD issues through SESLDH AOD services. I have identified two local centres he can attend, at St George hospital and Carringbah Community Health Centre. In regard to his traffic violations, this could be done through a Traffic Offenders’ intensive program which will be a longer program and follow on from the one-week Traffic offenders rehabilitation program Michael completed prior to his incarceration. I have identified two areas he can enrol in through SAVE Belmore and Belmore PCYC and Hurstville. Michael has also expressed his desire to work full time again when more opportunities arise within the employment market. We have also discussed the options of going to TAFE to obtain formal qualifications.[55]
[55] Statutory Declaration of Josephine Lancaster dated14 May 2021. [SESLDH – South East Sydney Local Health District].
The Tribunal would be very confident that were the Applicant to be returned to the community and to resume an on-going relationship with Ms Lancaster (and her children) – as both plan – he would be well supported to address those issues which he needs to overcome if he is to avoid any future reoffending.
Learning lessons and second chances
The Respondent is seriously in error and misleading of the Tribunal when it submits that the Applicant “has received multiple sentences of imprisonment.”[56] He has not. The record shows one sentence of imprisonment only, namely that of 27 August 2020 for a period of 16 months subsequently reduced to 14 months.[57] It is true that the Applicant was in custody from 13 April 2018 to 26 July 2018 but during this period he was on remand, not sentenced, and this period is recorded by the NSW Department of Corrective Services as being his “[f]irst time in custody”.[58]
[56] Respondent’s SFIC at 17(b)(ii)(A).
[57] G-documents at 30-31.
[58] Supplementary Evidence Bundle at 340.
What was clear to the Tribunal from the Applicant’s evidence was that being in custody had had a profound impact on him and that he was determined not to repeat the experience.
The NSW Crimes (Sentencing Procedure) Act sets out in section 3A the purposes of sentencing:
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows--
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
Two of those purposes relate to deterrence and rehabilitation. The Tribunal is convinced that the Applicant is committed to avoiding any further breaches of the law and prepared to undertake (with support) necessary rehabilitation programmes. In this instance the purposes of sentencing appear to have been fulfilled and the Applicant should be allowed the benefit of them.
In relation to driving offences the Applicant indicated that he would take steps through the authorities in Samoa to obtain primary identification documents which would allow him to apply for a driver’s licence and in relation to his AOD matters, the Tribunal refers back to the testimony of Ms Lancaster.
The exhortation in Hands
In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Chief Justice Allsop stated:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[59]
[59] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] per Allsop CJ.

CONCLUSIONS

The Tribunal is conscious of the extent to which it must, all other considerations set aside, be bound by the provisions of Ministerial Direction 90. In that respect the Tribunal concludes that while the protection of the Australian community and the expectations of that community weigh somewhat against the Applicant, the weight to be given to the best interests of minor children, the extent of impediments if removed and the ties to Australia overbear those and (with other criteria being neutral) result in a calculus in favour of the Applicant and the revocation of the visa cancellation decision.
The Tribunal finds that there is another reason for the visa cancellation to be revoked.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd].........................................
Associate
Dated: 24 June 2021

Date(s) of hearing: 8 June 2021

Advocate for the Applicant: Ms J Lancaster

Solicitors for the Respondent: Mr A Gardner, Minter Ellison

[2021] AATA 1872

24 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	8 June 2021
Advocate for the Applicant:	Ms J Lancaster
Solicitors for the Respondent:	Mr A Gardner, Minter Ellison