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

FCSV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3012 (21 September 2023)
Division:GENERAL DIVISION
File Number:2023/5100
Re:FCSV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:21 September 2023
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 11 July 2023, is affirmed.
..........[Sgd]..............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include carry out sexual act with another without consent-T2, numerous possess prohibited drug offences and breaches of community correction orders – Applicant is a 56 year old citizen of Fiji who arrived in Australia as a 21 year old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no family violence – strength, nature and duration of ties to Australia – no minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to Fiji – impact on victims – Reviewable Decision affirmed
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9, 10A
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(1), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
21 September 2023
BACKGROUND

The Applicant is a 56-year-old man who was born in Fiji. He came to Australia to reside on 25 January 1989 (G25/104).
On 19 September 2022, the Applicant was sentenced in the Paramatta Local Court to 12 months imprisonment commencing on 28 March 2022 to 27 March 2023 with a non-parole period of six months for the offence of “Carry out sexual act with another without consent – T2” (G7/34).
On 26 September 2022, the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G11/46-47).
The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 13 October 2022 (G14). He also submitted a personal circumstances form containing submissions (G15). He subsequently provided further information and submissions following requests from the Department of Home Affairs (Department) (G13; G14) which he responded to on 19 December 2022 (G17) and 26 April 2023 (G16).
However, on 11 July 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G5/19). This is the Reviewable Decision currently before me.
The Reviewable Decision (and documents pertaining to the decision) was hand delivered to the Applicant on 12 July 2023 (G3/10). On 13 July 2023 he lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2). His application was therefore lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 13 July 2023, meaning that I must hand down a decision on or before 4 October 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 14 September 2023.
The Applicant was self-represented. The Respondent was represented by Mr T Young of Minter Ellison.
The hearing took place in person, however Mr Taylor appeared by Microsoft Teams due to being interstate.
The Applicant made submissions and gave evidence at the hearing in person.
I admitted the following documents into evidence at the hearing:
(a)letter from the Applicant dated 29 August 2023 (Exhibit A1);
(b)letter dated 29 August 2023 confirming the Applicant has commenced an anger management course (Exhibit A2);
(c)International Health and Medical Services (IHMS) record (entry dated 24 March 2023) (Exhibit A3);
(d)section 501 - G Documents, labelled G1-G26, comprising pages 1-128 (Exhibit R1 – for convenience I refer to these documents by their G numbers, for example, G1); and
(e)“Supplementary Documents”, labelled SM1-SM5, comprising pages 1-63 (Exhibit R2 – again, I refer to these documents by their SM numbers, for example, SM1).
The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC) dated 16 August 2023 prior to the hearing.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the 12-month sentence imposed by the Paramatta Local Court on 19 September 2022 for the offence of “Carry out sexual act with another without consent – T2”.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(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 the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

The Applicant’s criminal history consists of property offences, possess prohibited drug offences and breaches of judicial orders. The Applicant’s offending history is as follows (G7):
(a)20 March 1991: “Malicious damage”. The Applicant was fined $100 by the Blacktown Local Court.
When asked about this at the hearing the Applicant recalled having a fight with his then girlfriend and breaking a few windows in the apartment where they were living. He could not remember if he attended court for this offence.
(b)1 May 2000: “AOABH [assault occasioning actual bodily harm]” (Assault offence), an indictable offence for which the Campbelltown District Court imposed a bond, pursuant to a former version of s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), for 12 months.
At the hearing the Applicant said that three or four of his associates robbed a man who was coming out of a bottle shop with a carton of beer. They gave the man a “toss here, toss there” and stole the carton of beer. The Applicant said that he was at the back of the pub which was next to the bottle shop and that his associates invited him to drink the carton of beer with them. He said that when the police came, they found him drinking the carton of beer with his associates and so he was charged with this offence. The Applicant said that he pled guilty to the Assault offence when he went to court.
(c)25 June 2018: “Possess prohibited drug” for which the Applicant was fined $400 in the Fairfield Local Court.
Police found a small amount of methamphetamine on the Applicant when they searched him (SM2/9).
(d)24 October 2019: “Possess prohibited drug” for which the Applicant was fined $750 in the Liverpool Local Court.
This offence involved the Applicant being searched by police who found a small resealable bag containing heroin (SM5/56).
(e)7 January 2020: “Enter inclosed [sic] land not presc[ribed] premises w/o [without] lawful excuse” (Trespass offence) for which the Applicant was fined $100 in the Liverpool Local Court.
According to the police facts sheet, the Trespass offence occurred at the same time as the 24 October 2019 “Possess prohibited drug” (heroin) offence (but I note that it had a different court date). The Applicant entered a premises where police observed and removed him. He told police he was “just walking past, I know the lady” (SM5/56). When asked about this at the hearing he said he met a woman at a shopping centre, and she showed him where she lived so he could return later and use drugs with her. When he returned to the location, she was not there, and the house had been demolished. He said he and a friend were smoking methamphetamine (“crystal meth”) there when police found them on the property and caught him with the heroin. There is no mention of a co-offender in the police facts sheet.
(f)29 January 2020: “Possess prohibited drug” (which the Applicant recalls was methamphetamine) for which the Applicant was sentenced in the Liverpool Local Court to a community correction order for six months, and supervision by Community Corrections for six months, commencing 29 January 2020 and concluding on 28 July 2020.
When asked about this at the hearing the Applicant recalled going to Court, signing into Community Corrections and then not attending supervision after that.
(g)9 April 2020: “Possess prohibited drug” (which the Applicant also recalled was methamphetamine) for which the Applicant was sentenced in the Liverpool Local Court to a community correction order for 12 months, and supervision by Community Corrections for 12 months with rehabilitation treatment programs, commencing 9 April 2020 and concluding on 8 April 2021.
By committing this offence, the Applicant breached the community correction order imposed on 29 January 2020. The penalty imposed by the Court for these breaches was the same as for the “Possess prohibited drug” offence.
When asked about this at the hearing the Applicant recalled signing into Community Corrections but then failing to attend any treatment programs. He said that he was “possessed” and “under the influence” of crystal methamphetamine at that time and so he did not want to do anything about his drug addiction.
(h)3 September 2020: “Possess prohibited drug” (the Applicant could not recall the drug but thought it might be cannabis) for which the Applicant was again sentenced in the Liverpool Local Court to a six-month community correction order, and supervision by Community Corrections for six months with rehabilitation treatment programs, commencing on 3 September 2020 and concluding on 2 March 2021.
By committing this offence, the Applicant breached the community correction orders imposed on 29 January 2020 and 9 April 2020. For the two breaches, the Court imposed a community correction order for 12 months and supervision by Community Corrections for 12 months with rehabilitation treatment programs, commencing on 3 September 2020 and concluding on 2 September 2021.
(i)20 January 2022: “Possess prohibited drug” (which the Applicant recalled was methamphetamine) for which the Applicant was again sentenced in the Liverpool Local Court to a community correction order and supervision by Community Corrections for 18 months commencing on 20 January 2022 and concluding on 19 July 2023 which required abstention for 18 months. The Applicant’s criminal record for this Court date also states, “Defendant warned if any breech [sic] gaol is looming”.
By committing this offence, the Applicant breached the community correction orders imposed on 29 January 2020 and 9 April 2020. The penalty imposed by the Court for these breaches was the same as for the “Possess prohibited drug” offence.
This conviction was shortly after the Applicant completed the MERIT program, which was a drug rehabilitation program (in approximately December 2021) (SM5).
(j)29 March 2022: The Applicant appeared in the Fairfield Local Court for breaching the community correction orders imposed on 29 January 2020, 9 April 2020, and 20 January 2022. The Applicant breached the orders by failing to report to Community Corrections on 21 January 2022, being the day after his last court date, and for not reporting to Community Corrections since that time (SM1/7). For the breach of the community correction order imposed on 20 January 2022 the Court recorded a s 10A conviction without imposing any further penalty pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW). For the breach of the community correction orders imposed on 9 April 2020, and 20 January 2022, the Court varied those orders to delete the supervision and require abstention for 18 months. The orders were effectively discharged because the Applicant had been remanded in custody without bail because he had been charged with the “Carry out sexual act with another without consent – T2” offence.
(k)19 September 2022: The Applicant was sentenced to 12 months imprisonment commencing on 28 March 2022 and concluding on 27 March 2023 with a non-parole period of six months commencing on 28 March 2022 and concluding on 27 September 2022 for the offence of “Carry out sexual act with another without consent – T2”.
The Applicant pled guilty to the offence at the earliest opportunity. The facts of this offence, which occurred on 23 March 2022, were described in detail by the sentencing Magistrate (G10/43-44):
… the victim in the matter was known to the offender. However, they were acquaintances and by no means close friends. There had not been any prior relationship any higher than that between them.
There was contact between them on 20 and 21 March and ultimately, the offender and the victim were socialising together at her home where they were consuming alcohol. The offender made advances of a sexual nature towards the victim, and she indicated quite emphatically that nothing was going to happen between them and that if he was not clear on that, she could leave his (as said) home. Ultimately, she resided upstairs in her bedroom for the night and went to sleep and the offender slept on the lounge downstairs.
The following morning, he was in the home and in the afternoon, they rested on the lounge and watched a movie together. He began flirting with the victim and she again made it very clear that there was nothing to happen between them. They did not touch at that time when they were together and ultimately, she fell asleep. Her son woke up at around 1.20 and went to check on his mother in her bedroom. She was not there, and he went downstairs and saw her unconscious on the lounge with the offender standing immediately behind her without any pants or underwear on.
The victim’s shorts and underwear were pulled down. She was asleep and not talking. The victim’s son thought the offender was having sexual intercourse while she was unconscious. He took a knife from his bedroom, ran towards the offender and yelled, “What the fuck are you doing?” and stabbed him in the upper back. The victim woke to screaming and saw her son push the offender out the front door. At that time, he was wearing only a T-shirt and no pants. Her son called out to him, “if you come back, I’ll fucking kill you.” He was captured on CCTV with no pants following this incident.
The victim asked her son what happened, and he said, “I came downstairs, [the Applicant] was naked and trying to rape you while you were asleep.” Police spoke to both the victim and her son. Later, the offender took part in an interview with police where he inferred that any conduct was welcomed by the victim. I am mindful in sentencing not to sentence for the more serious offence of attempted sexual intercourse and I note that while that was the view formed by her son, I am not sentencing on that basis. I am sentencing for the offence of carrying out a sexual act without consent which has been in his semi-dressed state behind the victim with his genitals exposed and her lower body exposed. I am sentencing on that basis only.
Direction No 99 provides that certain types of offending should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). These offences include sexual crimes. The Applicant’s “Carry out sexual act with another without consent – T2” offence clearly falls into this category and is properly regarded as very serious.
For completeness, I note that the Applicant was initially charged with “Sexual intercourse without consent – SI (attempt)” which was withdrawn (SM4/31). Although this is a more serious offence than the one the Applicant was convicted of, and the sentencing Magistrate made it clear that the Applicant was being sentenced solely based on that lesser offence, it does not alter that the “Carry out sexual act with another without consent – T2” offence is very serious.
The sentencing Magistrate also made the following comment about the aggravating circumstances of the offending (G10/44):
As properly conceded by his representative, the clearly aggravating factor was that it was in the home of the victim, the place where she was entitled to feel safe. She was in a vulnerable position at the time, being either asleep or unconscious but in any event, unable to react to what was taking place around her. She made it very, very clear to the offender that she was not interested in any sexual activity between them. …
These aggravating factors, namely the victim being in her own home where she was entitled to feel safe and the vulnerable position she was in, are further indications that the offending was very serious.
The only details before me concerning the Assault offence are from the Applicant’s own evidence. I do not have any sentencing remarks or any statements from police or the victim before me. The Applicant stated that he was not involved in the assault on the victim, but that he was caught by police drinking the stolen beer with the other offenders after the assault. On the Applicant’s own evidence, he pled guilty to this offence. I am required to accept the facts of this conviction. As the offence was a violent offence it should be regarded as “very serious” (para 8.1.1(1)(a)(i) of Direction No 99).
The Applicant also has multiple convictions for “Possess prohibited drug”. These offences appear to be related to his personal use of the drug and are far less serious than his sexual offence. His “Malicious damage” offence involved the Applicant damaging windows in an apartment he shared with his partner. As it is a property-based offence it is also less serious than an offence involving violence. His Trespass offence is also a property-based offence and is less serious for the same reason.
The Applicant received fines for his first few offences including “Malicious damage”, “Possess prohibited drug” and the Trespass offence. This suggests they were less serious. He also received Community Corrections orders for subsequent “Possess prohibited drug” offences, which became longer in duration, and added rehabilitation and abstention for subsequent breaches. His first sentence of imprisonment was for the “Carry out sexual act with another without consent – T2” offence which is indicative that the Court viewed the offence as sufficiently serious to impose a sentence of custodial imprisonment. Indeed, the sentencing Magistrate stated that, “[i]t was accepted that the custodial threshold was crossed and that is an appropriate concession having regard to the very serious nature of the offending conduct” (para 8.1.1(1)(c) of Direction No 99).
The Applicant committed his first offence of “Malicious damage” in 1991. Approximately nine years later he committed the Assault offence in 2000. There was a further break in his offending until 2018 with his first “Possess prohibited drug” offence. Since that time, he has offended each year, except for in 2021. Overall, his offending since 2018 can be regarded as frequent. The gradual increase in penalties that I described above, from fines, to community orders and then a term of imprisonment, suggests a trend of increasing seriousness. So too does the nature of the offences, with the repeated nature of the drug possession offences and breaches of community orders, through to his most recent offence of “Carry out sexual act with another without consent – T2” being the most serious. Overall, I find that there is a trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99).
The Applicant has had numerous Court appearances for his offending, call ups for breaches of community orders, supervision in the community and a custodial sentence of imprisonment. This would have placed some burden on the resources of police, corrective services, and the Courts. I find that there is likely to have been a cumulative effect of the Applicant’s repeated offending (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). The Applicant completed incoming passenger cards on 8 September 2007 and 10 June 2015 where he ticked the box marked “no” to the question” “Do you have any criminal conviction/s?” (G24/101-102). The Applicant’s explanation at the hearing was that he filled out the forms himself but that he thought he only had to disclose convictions if he went to jail. He was asked if he ticked “no” deliberately because he was worried about the consequences of saying “yes”. However, the Applicant denied this, and his evidence was that he did not know there would be any consequences. Although this seems naïve, the Applicant did appear to me to be sincere in giving this explanation.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has not received any prior warnings
The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant has committed numerous criminal offences, ranging from less serious offences through to a very serious sexual offence. There is a trend of increasing seriousness and a cumulative effect.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or to the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
If the Applicant was to commit a sexual offence, the harms that could result to members of the Australian community are potentially very serious and could include psychological harm and physical injuries.
The nature of the harm if the Applicant were to commit further drug offences is varied. Drug offences are generally, less serious than violent offences. Although the Applicant’s drug possession offences appear to be for his personal use (and not for sale or commercial profit), purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Offences against property, including those involving property damage and trespass can also result in financial detriment, and indirectly contribute to increased insurance premiums.
The harm that could result to members of the Australian community if the Applicant were to reoffend in a violent manner could include serious physical injury, temporary or permanent impairment or even loss of life. Violent offending may also result in psychological harm to victims. There is probably very little likelihood of this occurring as the Applicant’s Assault offence was in 2000, and he has not committed any further violent offences.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)

Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 56-year-old man who has committed numerous offences, with his criminal history showing an increase in seriousness. The Applicant initially received fines but was not deterred by them and continued to commit further drug possession offences and to breach community corrections orders. Despite being given several opportunities for rehabilitation and supervision in the community he did not adequately engage with those opportunities and continued to offend. Overall, this history suggests that there is a likelihood of future reoffending.
The Applicant had an addiction to “crystal meth” which contributed to his offending. At the hearing he described using cannabis from when he was approximately 16 or 17 years old, and that he started using “crystal meth” in approximately 2015 which was the cause of his relationship with his girlfriend at the time, B, breaking down. He also used heroin but said it was not regular when he was asked at the hearing about his heroin possession offence. After the relationship breakdown, the Applicant’s drug use increased and between 2019 to 2021 he was using “crystal meth” every day. After his relationship with B ended, he experienced housing instability and would stay at the houses of different drug using friends. This, according to the Applicant, continued up until he went to prison. The Applicant’s evidence was that he had not used any drugs since before he went to prison.
The Applicant was put on a Court ordered drug rehabilitation program in approximately September 2021 to December 2021 called the MERIT program, which included weekly drug and alcohol counselling. Despite positive completion reports (SM5), which appear to be based on the Applicant’s self-reporting about his drug use, the Applicant admitted at the hearing that he cut down his drug use when he was first on the program but that his drug use increased towards the end of it. One of those reports, which was dated 22 December 2021, said the Applicant self-reported previous drug and alcohol counselling in 2020 with the Drug Alcohol Multicultural Education Centre (SM5/37).
At the hearing, the Applicant stated that he would be willing to engage in drug rehabilitation in the community, however, there is no evidence he has made any enquiries or plans to do so. His history of significant drug use and failure to engage in rehabilitation in the community in the past, including increasing his drug use despite engaging in the structured, court-ordered MERIT program, is concerning. Given this history and lack of rehabilitation in the community, it may be difficult for the Applicant to abstain from drug use and reoffending if he is released into the Australian community.
The Applicant’s evidence was that he would look for work if he is released into the community. He has superannuation savings and wants to work to add to his superannuation. In 2008, the Applicant gained a TAFE qualification in powder coating. This qualification and his experience in that industry, as well as his other work experience, may assist him to find work if he is released into the Australian community. He played guitar in a successful band up until 2015, which culminated in a tour of Fiji in 2015. In a statement dated 26 April 2023 the Applicant said that if he can stay in Australia he will “work, volunteer for church, [and] play music with [a] band” (G16/73). These activities are protective and would be a meaningful use of the Applicant’s time which may reduce the likelihood of his reoffending.
The Applicant has lived in Australia for the past 34 years and he feels that he has become accustomed to Australian culture and the Australian way of life. He is keen to have a second chance to stay in Australia. Although he has a stepsister, stepbrother, and a few cousins in Fiji, he stopped communicating with his stepbrother and stepsister approximately four or five years ago. He has cousins in Fiji that he would be willing to contact, but he does not know where they live in Fiji. He has expressed concerns that he will struggle to go back to Fiji and is worried about finding work. The Applicant’s concerns about returning to Fiji may provide him with motivation to abstain from drugs and not to reoffend if he is able to stay in Australia.
Although the Applicant has lived in the Australian community for 34 years, he has few social or family connections who could offer him emotional or other support if he was able to stay in the Australian community. His friend, and former girlfriend B wrote a letter of support (G21/97), but the Applicant stated that she did not want to give evidence at this hearing. The letter mentions that the Applicant “became engrossed in a lifestyle that was detrimental to his character” but does not mention his criminal offending. At the hearing the Applicant also said that he was unsure if he would contact B again if he was able to stay in the Australian community because he was “moving forward now”. The Applicant’s friend and former band mate, T, also wrote a “character reference letter” (G22/98) but the letter does not mention the Applicant’s drug use or his offending. When asked about this at the hearing, the Applicant said that he had told T about his drug possession offences (cannabis and “crystal meth”), but that he had not told T about the sexual offence. In addition to T, the Applicant also mentioned his former band members as social connections but did not name them. His evidence was that he may resume contact with them but that currently they did not want to maintain a friendship with him or to support him. The Applicant said he was thinking of “moving on” and going to Church. He agreed that he may need to make new friends if he was permitted to stay in Australia. The Applicant appears to have limited social support persons in the Australian community who could assist him with emotional or practical support. Even if he was to resume contact with them, his friendships with B, T and his other band mates did not prove to be protective in the past, and they appear to have an incomplete or limited knowledge of his offending behaviour.
The Applicant was released on parole on 27 September 2022 (G20/93) but as his Visa was cancelled, he has been in immigration detention since that time. His sentence came to an end on 27 March 2023 while the Applicant was in immigration detention. A period of parole with conditions and supervision can help a person’s rehabilitation and reintegration into the community which may in turn lower the likelihood of reoffending. However, if the Applicant is released into the Australian community, he will not have the benefit of parole because his parole period has now expired.
At the time of the hearing the Applicant was participating in the Smart Recovery Program, which has one session per week. He said that he only had two or three more weeks to complete all the modules. IHMS records confirm his enrolment in the program and that he actively participated in group discussions on topics concerning goal setting, problem solving and consequential thinking (G19). At the hearing the Applicant stated that the program had helped him with his rehabilitation and that he had learnt about saying no to drugs and resolving conflict.
While in prison, the Applicant also participated in “Drug and Alcohol Abuse 101” comprising seven contact hours in approximately October 2022 (G23/99). He also submitted a certificate of acknowledgment (G23/100) “for demonstrating a positive attitude with a willingness to participate in a polite respectful manner”. The certificate appears to have been issued by a “Services and Programs Officer” for “5 day Orientation & Induction Information Sessions”. When asked about this at the hearing the Applicant confirmed that this was an orientation program in prison with the topics including depression, hope, and what to do when you get out of prison so as not to return there.
A letter dated 29 August 2023, signed by two counsellors, states that the Applicant commenced an anger management course (in immigration detention) on 5 July 2023, which has 10 sessions, and confirmed that he had completed seven sessions (A2).
The Applicant also said that in immigration detention he had attended bible study every Wednesday for approximately the last two months. He stated that these studies had a positive impact on him, had helped him cope with the stress of being in detention and that he was in a “better place”. He had stopped smoking cigarettes which he attributed to his bible studies and praying.
It is positive that the Applicant has engaged in drug rehabilitation programs, which may provide him with strategies to abstain from drug use in the future. However, his drug rehabilitation programs (Smart Recovery Program and “Drug and Alcohol Abuse 101”) were not intensive programs and he is likely to need structured support, such as residential rehabilitation, in the community on an ongoing basis. This is especially given his lack of compliance with court ordered rehabilitation programs in the past and his increased drug use towards the end of the MERIT program. Additionally, there are no reports from treatment facilitators about any gains that he may have made from completing the programs.
It is also positive that the Applicant has completed a prison induction and anger management course. However, the Applicant’s main areas of concern are in my view, his drug use and his “Carry out sexual act with another without consent – T2” offence. There is no evidence that the Applicant has engaged in any rehabilitation programs or counselling for this sexual offence. This is of concern given the Applicant’s lack of insight concerning this offence, which I will now discuss.
The Applicant’s evidence about the “Carry out sexual act with another without consent – T2” offence was inconsistent and displayed a lack of victim empathy and a lack of understanding that he had done anything wrong. At the hearing, the Applicant could not recall the victim emphatically telling him on several occasions that she was not interested in engaging in any sexual activity with him but admitted that at some point she told him that she was not interested in engaging in sexual activity with him. Despite the victim making this statement (at least once, on the Applicant’s evidence), he stated that he was “driving towards sex”, that “she was giving herself to me” and that she was “acting as if she wanted to be in a relationship”. When asked to explain this, the Applicant said that “she was moving her dress up whilst hanging clothes”, “showing her dress pulled up”, that she had an open button on her shirt and that “anyone would think she wants to be involved”. He said that he recalled the victim falling asleep but thought she was “still in a conscious mind”, that she was “admiring him” and looking at him in such a way that it was an “invitation”. He described the victim as inviting him with the movement of her eyes and her body which made him think “she was up to something”.
The Applicant also gave inconsistent evidence when asked about a different version of events that he provided in his personal circumstances form (G15). That version of events was not consistent with the facts he pled guilty to and upon which he was sentenced. The Applicant stated the following on this form (G15/66-67):
I was with a lady who I knew for over 6 years. We had been friends for a while. I was helping her move into her new house … During that time, I had been smoking methamphetamines (ice) with this lady at her house.
We had been awake for almost 5 days without sleeping, we were just partying drinking and smoking ice.
We were sitting in her lounge room and we were cosing [sic] up to each other. The lady’s son came in and seen us being cosy together and did not like what he saw. He started an argument with his mother, in which I tried to de-escalate the situation, but then the son turned towards me and struck me in the back of the head. I did not react to being assaulted by the woman’s son, and a short while latter the police had arrived at the house due to noise complaints by the neighbours.
When the police arrived, they questioned me at the house, then they took me down to [suburb omitted] police station for further investigation.
At the police station I was charged with “Carry our sexual act with another without consent T2”.
I was shocked at the allegations that were made against me, and I explained to the officers my version of events that happened, but the police charged me regardless.
(As original.)
This version of events was inconsistent with the statement of agreed facts signed by the Applicant’s lawyer (SM3/13-14), and as I have mentioned, is also inconsistent with the facts found by the sentencing Magistrate. The Applicant also contradicted himself at the hearing when asked about the version of events he gave in his personal circumstances form. For example, he stated that the victim’s son struck him in the back of the head two days before the offence when he had found them “cosing [sic] up” and that he was later stabbed by the victim’s son when the son reacted to seeing him committing the offence. When questioned further about this, the Applicant changed his evidence to say he was referring to the one event only which was when the victim’s son stabbed him on the day of the offence and that the victim’s son had not struck him on the back of the head two days earlier. I infer that the Applicant was attempting in his personal circumstances form to minimise his offending and present himself more favourably to the Departmental decision-maker. At the hearing, he also minimised his offending by trying to say that the victim was inviting him to have sex with her through her movements and conduct. It was apparent that he did not understand that he had done anything wrong. This raises serious doubts about the Applicant’s remorse and insight into his offending and raises serious concerns about a future risk of reoffending in a similar manner.
A breach report dated 21 July 2021 by a Community Corrections officer (SM1/2) stated that the Applicant, “was assessed by Community Corrections as a low risk offender”. It is unclear how this assessment was reached. For example, there is no reference to a formal assessment tool being administered. Also, after that assessment, the Applicant had further Court appearances for “Possess prohibited drug” offences and breaches of community corrections order on 20 January 2022, 29 March 2022, and he committed the “Carry out sexual act with another without consent – T2” offence on 19 September 2022. This calls into question the accuracy of the assessment that the Applicant was “a low risk offender”. Indeed, based on the evidence before me, I find that the Applicant is at least a moderate risk of reoffending with further drug offences or sexual offences.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
(a)After being assessed as “a low risk offender”, the Applicant committed further drug possession offences, breaches of community orders and a serious sexual offence. This suggests that he is higher than a “low risk”. I would conservatively place his risk as being “moderate” at the least.
(b)The Applicant showed a lack of insight into his sexual offending. He tried to minimise his offending and to present himself in a more favourable light. At the hearing, he did not appear to think that that he had done anything wrong. He sought to present the victim as having consented to engage in sex with him through her movements and conduct despite her emphatically stating that she was not interested in engaging in any sexual activity with him. This raises doubts about his empathy, insight and remorse, which in turn, suggests a likelihood of reoffending.
(c)It may be difficult for the Applicant to abstain from drug use in the community due to his history of methamphetamine (“crystal meth”) use, culminating in daily use of the drug. He has undertaken some voluntary treatment, which was not intensive and for which there are no reports from facilitators evidencing any treatment gains.
(d)Although the Applicant has stated he is willing to undertake rehabilitation in the community, he has no plans in place, nor is there any evidence he has made any enquiries. He will also not have the benefit of parole supervision or any community-based order to assist his rehabilitation and reintegration into the community.
(e)The Applicant has limited social supports in the community. It is unclear whether B and T want to provide him with continued social support, or if the Applicant will contact them. Even if he resumes friendships with them, they do not appear to have a complete picture of the Applicant’s offending history which raises doubts about how supportive they could be.
(f)The Applicant has committed numerous offences and has not been deterred from repeat offending despite being given the opportunity of community-based orders and opportunities for rehabilitation in the community. Indeed, he increased his drug use towards the end of the MERIT program.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)The Applicant did not offend for approximately nine years between 1991 and 2000 and 18 years between 2000 and 2018. This shows that he is capable of living in the community without offending.
(b)Although not intensive, the Applicant has engaged in some drug rehabilitation in prison and immigration detention, as well as other voluntary programs (such as anger management). He has expressed a willingness to undertake rehabilitation in the community, although he has no plans in place and there is no evidence of any enquiries being made.
(c)He has a positive outlook due to his bible studies, which helped him to quit smoking. This perspective could assist him to remain abstinent from drugs if he was released into the community.
(d)The Applicant wants to engage in work, go to Church and play music in a band. These are positive ways for the Applicant to spend his time and may assist to reduce the likelihood of his reoffending.
(e)He has had a period of abstinence from drug use in prison and immigration detention which may assist him to stay drug and alcohol free in the community, which may in turn reduce the likelihood of his reoffending.
(f)The deterrent effect of the time the Applicant has spent in prison and immigration detention, and his concerns about returning to Fiji after living in Australia for the last 34 years.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, as I stated above, I find that the Applicant is likely to be a moderate likelihood of reoffending.
After also considering the nature of the harm that could result if the Applicant reoffended, which ranges from less serious to very serious, overall, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 and paragraph 8.1.2 both weighed strongly against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)

Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen.
I note that a police officer applied for a restraining order to protect the victim of the Applicant’s “Carry out sexual act with another without consent – T2” offence. The grounds of the application stated that the applicant police officer was seeking “an apprehended domestic violence order”. However, that statement appears to be inaccurate because the reasons for the application state that “The PINOP [person in need of protection] has never been in an intimate relationship with the Defendant” (G18/80), and the title of the provisional order was “apprehended personal violence order” (G18/75). Consequently, I do not think from this evidence that there is a sufficient basis to conclude the Applicant perpetrated any family violence against the victim.
I find the same with respect to the Applicant’s 1991 “malicious damage” conviction. Whilst the Applicant admitted smashing windows in an apartment he shared with his girlfriend after they had a fight, there is not enough evidence to suggest there was family violence.
There is no other evidence before me that the Applicant has committed any family violence offences or that he has engaged in family violence conduct. I therefore find that this consideration is not relevant.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
•    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
•    more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
•    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant is single and does not have any immediate family members in Australia (G15/65-66).
The Applicant has friends and social connections in the Australian community.
His friend B, who was formerly his girlfriend and has known the Applicant since 1996, wrote a letter dated 13 April 2023 in support of the Applicant. She stated in her letter that the Applicant “had a strong bond with numerous people in the Fijian community and would often perform with his band for charitable events” (G21/97). At the hearing the Applicant said that he broke up with B in 2015 due to his problematic drug use, but that after a break of a few months they would speak every week or fortnight on the telephone. He last saw B in person in early 2022, and most of their contact has been on the telephone rather than in person.
Another friend of the Applicant’s, T, who played in a band with the Applicant and has known him for 20 years, also wrote a character reference dated 13 June 2023 in support of him (G22/98). At the hearing the Applicant said that he last talked to T on “messenger” in 2022, and that he spoke to him to ask him to write the letter. He said that since he went to prison, he had not had much contact with T.
The Applicant also identified his fellow band members (but did not name them) as further links to the Australian community and said that they wanted to start a band with him again if he was able to stay in the Australian community. At the hearing the Applicant initially said that the band was still going up until he went to prison (in 2022). However, he said later in his evidence that the band broke up in 2015 after they returned from a tour where they played music in Fiji.
At the hearing the Applicant initially said B would be devastated if he was removed to Fiji, due to the time he has spent residing in Australia. Later in his evidence he said that he was not sure if he would resume contact with her if he was able to stay in the Australian community because he wanted to move forward. The Applicant also stated at the hearing that B did not want to be a witness in these Tribunal proceedings.
The Applicant also gave evidence at the hearing that his friends, such as T, started to distance themselves from him when he went to prison and that he was unsure if he would resume contact with them upon release. He thought that they may want to re-start the band with him, but at the present time, he did not think they wanted to maintain a friendship with him or support him. He thought that he may need to make new friends.
It is unclear from B or T’s statements as to the impact that a negative decision in this application would have on them. It is unlikely to have much impact because the Applicant’s relationship with them no longer appears close. However, the fact that they were once close to the Applicant, and have provided letters of support, demonstrates some connection between the Applicant and persons in the Australian community. The same can be said of the Applicant’s band mates, including T.
The Applicant also stated at the hearing that he has two uncles in New South Wales, but he had not seen them “for ages”. He last saw them when he was invited to a Christmas gathering in December 2021 but has not seen or spoken to them since that occasion.
The Applicant has lived in Australia for the last 34 years, since he was 21 years old. This is a substantial amount of time.
As he arrived in Australia as a 21-year-old man, he was not resident in Australia during his formative years.
He has made some positive contributions to the Australian community through consistent employment up until 2015 (when he went on Centrelink benefits) and through his membership of a musical band. The band performed at the RSL club approximately once a month for payment. He also stated that the band “performed many volunteering acts” (G16/72-73). When asked about this at the hearing the Applicant stated that approximately once or twice per month the band would play free gigs in the local community, such as at weddings and community events, or people would pay them what they could afford. This contributes to the weight to be given to his time in Australia.
The Applicant arrived in Australia on 25 January 1989 and his first criminal conviction for “malicious damage” for which he received a $100 fine was on 20 March 1991, just over two years after he arrived in Australia. Two years is a relatively short period of time after arrival and so this does slightly diminish the length of time that the Applicant has spent in Australia.
The Applicant has lived in Australia for a long period of time and has some family and social ties to the Australian community. His formative years were not spent in Australia because he arrived in Australia as a 21-year-old adult. He committed his first offence approximately two years after arrival, and he has made some positive contributions through employment and playing volunteer concerts in the community with his band. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the best interests of a child affected by the decision (para 8.4(1) of Direction No 99).
The Applicant has not identified any minor children, nor is there any evidence before me, of minor children in Australia who would be affected by my decision. I therefore find that this consideration is not relevant.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)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 to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by his criminal history, the Applicant has breached this expectation by not obeying Australian laws. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f).
The Applicant’s “Carry out sexual act with another without consent – T2” offence for which he was sentenced on 19 September 2022 would fall within sub-paragraph 8.5(2)(c) of Direction No 99 which refers to the “commission of serious crimes against women …” including crimes of a “sexual nature”. As I concluded above with respect to the first primary consideration, the offence was a serious crime against a woman.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to Fiji as soon as is reasonably practicable and he will remain in immigration detention until he is removed.
Further, if he is removed to Fiji, it is likely that the Applicant will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia.
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.

The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 56 years of age.
He suffers from asthma for which he uses a Ventolin puffer two to three times a day (G15/69). At the hearing he stated that he gave up smoking approximately two months ago. He said he went to hospital approximately two weeks ago to have his breathing checked. He stated at the hearing that he forgets things and has some memory loss, however, that evidence was not in a written statement, nor is there any medical evidence before me about that.
The Applicant has not identified any mental health issues in any of his written submissions. At the hearing he mentioned feeling stressed, anxious and depressed at being in immigration detention, but there is no formal diagnosis or record of any medication for mental health issues before me. I do note, however, that the sentencing Magistrate referred to “issues in respect of [the Applicant’s] mental health”, which the Magistrate considered, but they were not specified (G10/44). An IHMS record dated 24 March 2023 notes that the Applicant’s “mental state” is “stable” and that he did not think that he required any further counselling at that stage (A3).
The Applicant left Fiji as a 21-year-old adult, and so there are unlikely to be any language or cultural barriers if he were to return there. He stated in his personal circumstances form that he would face “hardship” if returned to Fiji because he has “been absorbed by the Australian way of life” (G15/69). At the hearing he also stated that he had adjusted to the Australian culture and that he would find it difficult to adjust if he was returned to Fiji. There is likely to be a period of adjustment to life in Fiji after living in Australia for so many years and the Applicant may suffer some emotional detriment if returned. The Applicant has travelled back to Fiji on four occasions, in 1994, 2007 (twice) and 2015, and so it is not an unfamiliar country (G25). I also note that he has “a few cousins” in Fiji but at the hearing he said he does not have contact with them. He has a stepbrother and a stepsister in Fiji. He used to send them money in approximately 1991 and 1992 to help support them in their daily lives but stopped doing so and has not communicated with them for the last four or five years. The Applicant’s evidence was that he no longer knows where his family members in Fiji live and so it is doubtful as to whether they may be able to provide him with any social support (G15/65-66).
The Applicant also stated in his personal circumstances form that he would “face being homeless” and not have “any financial assistance to help [him] out” which would be “devastating” (G15/69). According to the Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022 (DFAT Country Report), paragraph [2.18]-[2.21], most Fijians work in tourism, agriculture and aquaculture, the minimum wage is much lower than in Australia, and unemployment rates are high. The Applicant does, however, have some skills and substantial work experience that may help him to find employment if he is returned to Fiji. As I mentioned above, he studied powder coating at TAFE in 2008. The employment history he stated in his personal circumstances form shows that he has consistently worked from 1994 to 2015 as a process worker, labourer, and powder coater (G15/68). In a more recent statement dated 26 April 2023, he stated that he had worked as a labourer, handyman and supervisor for a large company manufacturing doors and window shutters where he would powder coat the frames to ensure they met quality standards (G16/73).
He also stated that he had “saved a large superannuation for [his] retirement” (G16/73). At the hearing the Applicant confirmed that he had approximately $90,000 in superannuation. He was able to access some money from his superannuation during the COVID-19 pandemic, but his evidence was that he tried to access some money when he went into immigration detention to pay a lawyer but was not able to access it. He is unsure when he will be able to access any of his superannuation. I am uncertain whether the Applicant would be able to access this money until retirement age, and so it may not immediately be available to him. The Applicant’s superannuation savings may assist him in retirement age if he is returned to Fiji because, according to the DFAT Country Report, at [2.22], the pension system in Fiji only covers formal sector workers.
The DFAT Country Report also states that “Healthcare is generally available for those who need it”, that “Specialist healthcare is generally available” and that healthcare “is free to the patient”. With respect to medication, the DFAT Country Report states that “Medication availability varies and the range of medications available in Fiji is less than in Australia”, at [2.11]-[2.12].
With respect to mental health services the DFAT Country Report states at [2.13], “Some support is available from nursing stations, health centres, general practitioners and hospitals” and there is a public psychiatric hospital located in Suva but there are “an inadequate number of mental health professionals to meet demand”.
The Applicant has a history of drug use and there is a possibility that being returned to Fiji may detrimentally impact on his rehabilitation and that he may relapse. With respect to drug and alcohol services, the DFAT Country Report states at [2.13]:
Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
This country information is of some concern because it suggests that the Applicant could have some difficulties accessing these services if he requires them.
In summary, there are minimal to no language and cultural barriers, the Applicant left Fiji as an adult and has travelled back there on four occasions and so it is not unfamiliar to him. He has work skills that may assist him to find employment, and he would be able to access medical services to treat his asthma. Although there are less drug rehabilitation services than those available in Australia, there are likely to be some available to him.
Consequently, I find that there are some impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to Fiji, but that they are not insurmountable.
I therefore find that this consideration weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or on the victim of the Applicant’s Assault offence or his “Carry out sexual act with another without consent – T2” offence.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed strongly against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed moderately in favour of the revocation of the Cancellation Decision.
(c)The expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)I gave neutral weight to the other consideration of the legal consequences of the decision.
(b)The extent of impediments if removed other consideration weighed slightly in favour of revocation of the Cancellation Decision.
(c)I gave neutral weight to the impact on victims.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each of them above is appropriate.
Overall, I find that the primary considerations of the protection of the Australian community (which weighed strongly) and the expectations of the Australian community (which also weighed strongly) against the revocation of the Cancellation Decision outweigh the considerations that weigh in favour of the revocation of the Cancellation Decision. These are the primary consideration of the strength, nature and duration of the Applicant’s ties to Australia (which weighed moderately), and the other consideration of the extent of impediments if the Applicant was removed to Fiji (which weighed slightly) in favour of the revocation of the Cancellation Decision.
In summary, I am not satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 11 July 2023, is affirmed.

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

............[Sgd]......................................................
Associate
Dated: 21 September 2023

Date of hearing: 14 September 2023

Representative for the Applicant: Self-represented

Representative for the Respondent:

Mr T Young, Minter Ellison

[2023] AATA 3012

21 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing

Date of hearing:	14 September 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr T Young, Minter Ellison