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

Fetalaiga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3415 (23 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5657
Re:Keresoma Fetalaiga
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:23 October 2023
Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
...................................[SGD].....................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a citizen of New Zealand – applicant held special category visa – visa cancelled on basis of substantial criminal record – applicant requested revocation of cancellation of visa – delegate refused to revoke – applicant sought review by Tribunal – ministerial direction – primary considerations – protection of Australian community from criminal or other serious conduct – culpable driving causing death – other traffic offences – strength, nature and duration of ties to Australia – best interest of minor children in Australia – expectations of Australian community – other considerations – extent of impediments if removed – impact on Australian business interests – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Secondary Materials
FAQs for Returning Offenders – Ara Poutama Aotearoa, Department of Corrections (NZ) – January 2019 – Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
23 October 2023
PRELIMINARY

The Applicant, Mr Keresoma Fetalaiga, is a citizen of New Zealand. He was born in 1985 and first came to Australia for a holiday in 2007. He later returned to live in Australia in March 2015 and has not departed since. As a New Zealand citizen, he held a Class TY Subclass 444 Special category visa until it was cancelled.
In October 2019, the County Court of Victoria convicted the Applicant of the offence of Culpable driving causing death. He was sentenced to six years’ imprisonment with a non-parole period of three years and three months.
On 5 June 2020 Mr Fetalaiga was notified that his visa had been cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The basis for the delegate’s action was that the Applicant failed the character test in the Act as he had a ‘substantial criminal record’ because he had been sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and 501(7)(c) of the Act) and that he was serving a sentence of imprisonment on a full-time basis in a custodial institution (s. 501(3A)(a)(iii) of the Act) at the time his visa was cancelled (GD, p 49).
The Applicant was invited to make representations as to whether there was another reason under s 501CA of the Act for the mandatory cancellation of his visa to be set aside. He did so, and on 2 August 2023 a different delegate of the Respondent decided that Mr Fetalaiga did not pass the character test and nor is there another reason under s 501CA(4)(b)(ii) to revoke the cancellation of his visa.
The Applicant brought the matter to the Tribunal for review of that 2 August 2023 decision. Because of the provisions of s 500(6L) of the Act, the Tribunal must make a decision within 84 days of when Mr Fetalaiga was notified of the delegate’s decision, or otherwise the Tribunal will be taken to have affirmed the reviewable decision. The eighty-fourth day in this matter is 26 October 2023.
For the reasons that follow, the reviewable decision is affirmed. That means that the cancellation of the Applicant’s visa is not revoked.
HEARING
A hearing was held on 11 October 2023. The Applicant was represented by Mr Mukesh Chand of Shiva’s Migration Service. Mr Adam Cunynghame of Sparke Helmore Lawyers represented the Respondent. Mr Fetalaiga gave evidence and was cross-examined. His de facto partner, who will be called ‘Ms TP’ in these reasons, also gave evidence.
The Tribunal had regard for a Statement of Facts, Issues and Contentions of the Applicant, (‘ASFIC’) a Statement of Facts, Issues and Contentions of the Respondent (‘RSFIC’), and a Statement in Reply of the Applicant.
In addition, the Tribunal admitted certain documents into evidence as exhibits, which are listed in the annexure to these reasons.
QUESTIONS BEFORE THE TRIBUNAL
Does the Applicant fail the character test?
At the commencement of the hearing, the parties both submitted that it was not contested that Mr Fetalaiga does not pass the character test because he has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more, and that he was serving a full-time sentence at the date his visa was cancelled.
Section 501(7) of the Act provides as follows:
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…
On the basis of the sentence imposed by the County Court of Victoria on 16 October 2019, the Tribunal finds that the Applicant has a substantial criminal record in terms of s 501(7)(c) of the Act. The Tribunal also finds that he was serving a sentence of full-time imprisonment on 5 June 2020, which was the date a delegate of the Respondent cancelled his visa. Therefore, Mr Fetalaiga’s visa was cancelled by operation of law. Because of this he cannot rely on s 501CA(4)(b)(i) of the Act, as a person who passes the character test.
The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?
Having made the finding that the Applicant does not pass the character test, and being satisfied that the Applicant was invited under s 501CA(3) of the Act to make representations about the revocation of the decision to cancel the visa, the power was enlivened for the Minister, or his delegate (or the Tribunal now standing in his shoes) to potentially revoke the cancellation decision if satisfied, under s 501CA(4)(b)(ii), that there is ‘another reason why the original decision should be revoked’. This is the question that the parties agreed is before the Tribunal.
In considering this question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 23 January 2023, the Minister made a direction, which took effect on 3 March 2023. This is Direction No. 99 (‘the Direction’). Decision-makers, including this Tribunal, must, under s 499(2) of the Act, comply with the Direction.
THE OPERATIVE OFFENCE
The circumstances of the operative offence which caused the mandatory cancellation of the Applicant’s visa were in the sentencing remarks, which were before the Tribunal (GD, pp 26-37). In summary, the Applicant was working for a plasterboard firm. He had finished work for the day and was driving his work truck home, ready for an early start the following day. At about 5.38 pm on a Friday in April 2017 he was driving along a road which initially has two lanes for southbound traffic. However, he came to an intersection and after that intersection the road expands to three lanes. However the left-most lane is a parking lane.
Mr Fetalaiga said in his oral evidence that he had noticed that the freeway he would normally use was banked up with traffic, so he decided to detour on this alternative route. He was less familiar with this road. The speed limit on the road was 60 kilometres per hour. His truck was not loaded, and he was travelling alone. The Applicant said in his oral evidence that he had a stressful day because he was working with a new ‘jockey’ (i.e. assistant) and there had been various things that happened during the day which had been frustrating. He said he left work, stopped at a liquor outlet, and purchased what he described in his oral evidence as ‘a couple of beverages.’
As he crossed the intersection, the Applicant realized that the road had expanded to three lanes. He was travelling closely behind a large Coles supermarket semi-trailer with a closed body. He decided to pass the semi-trailer on the inside, i.e. the left lane. The victim was a 19-year-old international student who was standing next to his car which was legally parked in front of his workplace in the left-hand southbound lane. The victim had just finished work and had placed some items in the back seat of his car. He was about to get into his driver’s seat when he was struck and killed by the Applicant’s truck.
Three witnesses had observed the Applicant travelling very close behind the Coles semi-trailer. The Court accepted that, because Mr Fetalaiga was driving so closely behind it, he was unable to see the left-hand lane and whether it was safe and clear to move into that lane. Shortly after he moved into the lane, the Applicant must have seen the victim and his car. He applied the truck brakes with force, leaving a 16-metre skid mark before the impact between his truck and the victim’s Toyota car.
The Court accepted expert analysis that the Applicant’s truck was travelling at approximately 83 kilometres per hour in the 60 kilometre per hour zone at the time of impact. As a result of the impact, the victim was thrown more than 29 metres south, and his vehicle was struck in the rear right corner, pushed up onto the nature strip, turned anticlockwise and came to a rest against a power pole.
The Applicant stopped and waited for emergency services. An off-duty nurse who was passing stopped to render assistance to the victim, but she was unable to detect a pulse. Paramedics quickly attended the scene but attempts to resuscitate the victim were unsuccessful.
Police arrived and conducted a preliminary breath test, which was positive. A search of the Applicant’s truck located five empty cans of bourbon and coke in the refrigerated centre console of the truck and a sixth open can was found in the cabin of the truck. It was accepted for the purposes of the plea that Mr Fetalaiga had a blood alcohol reading of 0.076 at the relevant time. Because he was driving a truck, the permissible blood alcohol reading was zero.
THE MINISTERIAL DIRECTION
In forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of Mr Fetalaiga’s visa, the Tribunal must have regard to the relevant contents of the Direction made by the Respondent Minister.
The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (para 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
Before the Tribunal (GD, p 25) was an Australian Criminal Intelligence Commission nationally coordinated criminal history check (‘ACIC report’). It recorded that on 16 October 2019 the Applicant was convicted before the County Court of Victoria at Melbourne of the offence of Culpable driving causing death. The sentence imposed was six years’ imprisonment and his driver licence was cancelled. He was also disqualified from driving for 24 months. The sentencing remarks of His Honour Judge O’Connell reveal that 78 days of pre-sentence detention was taken into account as time served, and that the Judge fixed a non-parole period of three years and three months.
However, the ACIC report does not provide a complete picture. Also in the papers was a New Zealand Police certificate in relation to the Applicant (GD, p 38) which recorded three traffic convictions. In chronological order, two offences are recorded as being committed on 16 December 2011. Mr Fetalaiga was convicted of the offence of Drove with excess blood alcohol content blood/breath = 177. For this offence he was fined $400 and disqualified from driving from 24 April 2012 (the date of the Court appearance) for seven months. On the same date he was convicted of the offence of Drove a motor vehicle in a dangerous manner. For this offence he was convicted and sentenced and the disqualification from driving was noted.
The third offence on the New Zealand Police certificate was committed on 28 October 2012 where Mr Fetalaiga was convicted of the offence of Drove while disqualified. It is evident he drove a motor vehicle before the expiry of the seven-month disqualification period imposed by the Court in April 2012. He was convicted of that offence, fined $400 and disqualified from driving for a further six months.
In the Tender Bundle (TB, pp 1-3) was material produced under summons from VicRoads. It recorded the County Court conviction referred to above. The VicRoads material also recorded that Mr Fetalaiga’s driver licence was suspended because of the accumulation of demerit points from 3 August 2017 to 2 November 2017. It also recorded that the Court cancelled his driver licence 16 October 2019 to 15 October 2021. It further recorded that his licence was ‘suspended indefinitely as a Medical process from 17 May 2019’. The Tribunal remarked that it did not know what was meant by the term ‘Medical process’ and the representatives of the parties were unable to shed any light. The Tribunal therefore disregards this entry in the VicRoads material.
In addition, the VicRoads material lists the following offences in the name of the Applicant:
a)26 June 2015 – Exceed speed limit by less than 10 km/h. Penalty: 1 demerit point.
b)21 September 2015 – Exceed speed limit by less than 10 km/h in a heavy vehicle. Penalty: 1 demerit point.
c)22 October 2015 – Fail to give way, stop or remain stopped. Penalty: 3 demerit points.
d)31 October 2016 – Exceed speed limit by less than 10 km/h. Penalty: 1 demerit point.
e)7 November 2016 – Exceed speed limit by less than 10 km/h. Penalty: 1 demerit point.
f)10 December 2016 – Exceed speed limit by less than 10 km/h. Penalty: 1 demerit point.
g)18 December 2016 – Exceed speed limit by 10 km/h or more but less than 15 km/h. Penalty: 3 demerit points.
h)12 March 2017 – Exceed speed limit by less than 10 km/h. Penalty: 1 demerit point.
i)9 May 2017 – Exceed speed limit by less than 10 km/h. Penalty: 1 demerit point.
j)1 November 2017 – the Applicant drove whilst authorisation was suspended on 4 August 2017. For this offence he was fined $350.
k)22 February 2019 – Careless driving. Penalty: 3 demerit points.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. None of the categories stipulated in paragraph 8.1.1(1)(b) are relevant to Mr Fetalaiga.
Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. The Tribunal notes that the County Court imposed a substantial prison sentence of six years on the Applicant, and the Judge noted that if he had not pleaded guilty the sentence would have been seven years and six months. Mr Chand submitted that the maximum sentence for the offence of Culpable driving causing death is 20 years’ imprisonment and noted that His Honour stated, “In my view, [the offending] is more accurately characterised as tending towards the lower end of the range for the offence of culpable driving.” (GD, p 35-36).
It is perhaps more illuminating to read the whole of this part of the sentencing remarks to get the context of what was being said. As background, the prosecution was required to put before the Court that the conduct of the accused was grossly negligent, in order to sustain the charge of Culpable driving causing death, as opposed to the lesser offence of Dangerous driving causing death. The prosecution opening summary relevantly stated (TB, p 136):
The prosecution alleges that the accused’s manner of driving his truck, having regard to all the circumstances, fell so far short of the standard of care a reasonable person would have exercised and involved such a high risk of death or serious injury resulting from his conduct that it constitutes gross negligence and renders him liable to be convicted of culpable driving causing the death of [victim’s name redacted] (Count 1). The prosecution relies on excessive speed, failing to keep a proper lookout, driving while having alcohol present in his blood, and the totality of the accused’s driving in all the circumstances.
Judge O’Connell in sentencing said (GD, pp 35-36):
[26] As to the gravity of your offending, you knew that you should not be driving with alcohol in your system and that is a concerning feature of your conduct. Given the blood alcohol reading of .076, and the circumstances of your driving as I have described them, I have formed the view that you should be sentenced on the basis that alcohol contributed to your offending, but that it could not be said to be the determinative or predominant factor in causing the collision.
[27] In this instance, whilst I must have regard to the totality of your conduct, the significant features of your driving which make out the gross negligence, being the speed of 83 kilometres per hour in a 60 zone, the blood alcohol reading of 0.76 and the failure to keep proper lookout, do not persuade me that your offending should be characterised as sitting within the mid-range of seriousness. In my view, it is more accurately characterised as tending toward the lower end of the range for the offence of culpable driving. However that characterisation should not be taken in any way to unduly minimise or undervalue the fact that a young man who was loved and who was cherished has lost his life as a result of your gross negligence. Any offence of culpable driving is serious and will merit the imposition of a substantial term of imprisonment, and this case is no exception.
While the Tribunal accepts Mr Chand’s submissions that the sentence imposed was much shorter than the allowable maximum for this offence under the relevant Victorian law, I nonetheless in the context of the sentencing Judge’s remarks find that the offending is properly characterised as very serious. It cannot be otherwise when it caused the death of a person and was a result of gross negligence when the offender was intoxicated.
The other offending of the Applicant in both New Zealand and Australia all relates to traffic matters. In regard to the New Zealand conviction for careless driving, the Applicant initially in his oral evidence said that he did not remember the details, other than that he had been out with friends and had no other way of getting home and so drove when he was over the legal limit. In response to direct questioning from the Tribunal that noted he appeared in Court and whether he remembered what the police prosecutor said at the time, Mr Fetalaiga said that he thinks that on that occasion he might have collided with a parked car.

The Tribunal also asked the Applicant what happened immediately after the tragic event in April 2017. The Applicant said that he was arrested by police at the scene and taken to the police station and interviewed. His licence was taken from him, and he was given police bail to appear in Court the following Monday. He said that at that Court appearance his then lawyer made submissions that his driver licence should be restored because he relied upon it for his work, and the Court did so. Notably in the VicRoads material is that Mr Fetalaiga committed a speeding offence on 9 May 2017, which was one month after the culpable driving incident.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. A survey of Mr Fetalaiga’s complete list of convictions in New Zealand and Australia shows some thirteen driving offences, including the culpable driving offence. Many of these relate to driving over the posted speed limit by up to 10 km/h and the Applicant indicated they were speed camera infringements he received in the post. However, there are convictions for careless driving in both countries and for driving when his licence was suspended. I find that there have been relatively frequent traffic offences which, apart from the operative offence, were not of the highest range but they do indicate some pattern of poor and careless driving behaviour.
Paragraph 8.1.1(2)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been a cumulative effect of relatively regular offending through a large number of traffic offences.
Paragraph 8.1.1(2)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. Before the Tribunal was an incoming passenger card completed by Mr Fetalaiga when he re-entered Australia on 30 March 2015. In answer to the question, ‘Do you have any criminal conviction/s?,’ he marked the ‘No’ box. When asked why he had marked the ‘No’ box, given his New Zealand traffic offences, Mr Fetalaiga said: “I thought it meant gaol or prison. I paid fines that settled and were paid for.” Mr Cunynghame submitted in his closing submissions that the words in the Direction are plain, regardless of the explanation, and the words of the question in the incoming passenger card was equally plain, and that the Applicant accepted he had attended Court.
The Applicant admitted he went to Court in New Zealand for the disposition of the charges laid against him there. The Tribunal finds that the Applicant did provide false information in his responses in the incoming passenger card.
Paragraph 8.1.1(2)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. There is no evidence that the Department has warned the Applicant in the past.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
The Direction states that 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. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. The nature of harm to the community if the Applicant continued to offend while driving a motor vehicle ranges from risk to other road users to the potential of significant injury and loss of life. Putting aside the operative offence, speeding (albeit generally not significantly above the posted limit) is a feature of Mr Fetalaiga’s driving history, as is some disregard for the licensing authorities in driving when not entitled to.
The Respondent submitted that there appears to be no expert evidence on the Applicant’s risk of re-offending. In the papers there is a psychological report of Dr Gary Walker dated July 2019, addressed to the Court (GD, pp 116-119). Dr Walker reports that Mr Fetalaiga attended counselling sessions on ten occasions between July 2017 and September 2017. Dr Walker reported that the Applicant told him he had experienced ‘a rollercoaster of emotions including grief, remorse and guilt, after being involved in a motor vehicle accident...where a member of the public lost their life.’
Dr Walker recommended that the Applicant be referred by his general practitioner for appropriate specialist assessment and treatment of his Post-Traumatic Stress Disorder symptomatology and for ongoing psychological support. Dr Walker reported that Mr Fetalaiga had seen his general practitioner for referral to a drug and alcohol service ‘as he was craving alcohol at times to escape his thoughts and hearings’ and that he told Dr Walker he had attended a drink driving course in line with his solicitor’s recommendation. Dr Walker observed that the Applicant ‘appeared to exhibit genuine remorse for his actions and behavioural change as a result.’ Dr Walker recorded that Mr Fetalaiga found attendance at his church helpful where he was able to stand up and tell fellow churchgoers about the incident, and that he had prayed for the family of the person who died in the accident.
A feature of the elements of the operative offence is that it does not require an intention on behalf of the accused person. However, in the case of the Culpable driving causing death offence, the elements of the offence do require that the person be found to have been grossly negligent. As the Court found, Mr Fetalaiga’s speeding, consumption of alcohol and failure to keep a proper outlook constituted that gross negligence.
It is particularly disturbing to the Tribunal that Mr Fetalaiga, having been involved in an incident where a person was killed, and where I accept that he was deeply upset and remorseful, went on to commit a speeding offence only one month later. It is also concerning that the Applicant incurred a further offence for driving when not authorised. When asked under cross-examination why he exceeded the speed limit on these occasions, the Applicant responded that “some were taking a child to hospital.” When asked about the careless driving offence, Mr Fetalaiga said he was in a car park and some friends were playing a prank by ‘banging’ the back of his truck with their hands, which distracted him and in turn he confused the brake and accelerator and collided with a truck. He said police were present and he was charged. In respect of one of the speeding offences, the Applicant said he lent his car to a friend and got a speeding fine in the mail for the time when the friend was driving the car. Mr Cunynghame asked if he sought to challenge the fine notice. The Applicant said at the time he was not aware that he could.
When asked why he drove whilst disqualified, Mr Fetalaiga said his eldest child needed to go to the doctor and his partner was at work, so he took it on himself to take him to the clinic.
The Applicant in his oral evidence said that he did not want to continue in the trucking industry and wanted to pursue another line of work, such as construction. But he did not disavow driving completely. He said that if his visa was restored his intention was to do a driving course to both ‘brighten’ up his driving skills, having not driven since his incarceration, and also because of the accident.
The sentencing Judge said (GD, p 36):
Moreover, I do accept that your prospects for rehabilitation are excellent. You retain the support of your immediate and extended family, and you have four young children that you wish to help raise. You have no prior convictions, you have a good work history, you are remorseful and take responsibility for what you have done.
It is apparent from this extract that the County Court was unaware of the Applicant’s New Zealand driving convictions. The Tribunal is not competent to say whether that might have affected the Court’s deliberations over sentence. But the fact of the New Zealand convictions does affect the Tribunal’s conclusions on the risk of Mr Fetalaiga re-offending, which the Tribunal is required to make in accordance with the Direction.
Mr Chand submitted that two Level of Service/Risk, Need, Responsibility (‘LSR’) Summary Reports (Exhibits A6 and A7) both record Mr Fetalaiga’s risk level as ‘low’. Appended to the LSR Summary Report was a Corrections Victoria Sentencing Management Unit document dated 7 February 2020 headed ‘Risk and Recommended Actions’. It relevantly states:
Institutional History – This is Keresoma’s first term of imprisonment. Since being received into custody in August 2019, Keresoma has not generated any incidents, nor has he been the subject of any adverse intelligence reports.
Risk of Reoffending – According to the LSI Prisoner Fetalaiga has been assessed as a low risk of reoffending. Full LS/RNR assessment not required.
Mr Cunynghame submitted that the LSR Summary Reports should be given limited weight, because the Applicant is in a controlled environment. The Tribunal notes that these are summaries only, and a more detailed assessment was not undertaken by the prison authorities on the basis that Mr Fetalaiga’s risk profile was seen to be ‘low.’ However, caution must be exercised when taking the LSR Summary Reports into account, because they are designed, as the name implies, to help corrections authorities assess the level of service and risk of a particular prisoner, to assist in categorising prisoners while incarcerated. In Mr Fetalaiga’s case, all his offending has been behind the wheel. It is accepted that he is not a violent or dishonest man and that he has no non-traffic offences recorded in either Australia or New Zealand, taking into account the offences where he drove a motor vehicle when he was disqualified from so doing.
The Tribunal concludes that there is some risk of the Applicant re-offending, most likely in terms of further traffic offences, and that it is a real risk. He did not proffer a comprehensive explanation as to why he purchased six rum and coke cans on his way home, and had consumed five of them before the collision, other than to say he had had a stressful day. As someone who had experience driving a truck for work, he knew he was not permitted to have any alcohol in his blood when driving a heavy vehicle. His explanations for having accumulated many speeding fines were frail, and he has driven on two occasions, one in Australia and one in New Zealand, when he knew his licence was suspended. This reflects disregard for the law.
There is evidence before the Tribunal that the Applicant tested positive for drugs on two occasions in February and March 2020 while in prison (GD, p 125). In examination in chief he was asked about general illicit drug use in his life. He told the Tribunal that he had tried marijuana and ‘ice’ but did not like either. He said he did drink alcohol at the time of the operative offence, and estimated he would have between six and eight drinks on the weekend, usually by himself. He said that he had undertaken some rehabilitative courses in gaol, and they had taught him the importance of being patient, to drive safely and always consider other road users. He also said the courses emphasised not to drink and drive. Mr Fetalaiga said he had undertaken drug and alcohol courses and a course in ‘smart recovery,’ and he had himself gone over the road users’ handbook. He said, “I will give up the trucking industry and pursue other career paths. I will limit my driving to family reasons.”
When pressed on whether he would quit working in trucking in general, the Applicant said he would look for work in warehousing or perhaps the construction industry.
The Direction requires the Tribunal to have regard to evidence of rehabilitation achieved by the time of the decision. While incarcerated, Mr Fetalaiga has undertaken a number of improving courses, as well as completing some vocational qualifications. He has completed a ‘Power of Positive Parenting Seminar’ (GD, p 128); a ‘Raising Confident, Competent Children Seminar’ (GD, p 129); a ‘Raising Resilient Children Seminar’ (GD, p 134); and a Relationships Australia course (GD, p 130). He also completed a ‘Know the Score AOD Program’ in 2020 (GD, p 131) and a ‘6 Hour Managing Cravings Program’ run by Caraniche in 2023 (GD, p 132). He completed a 24-hour Drug and Alcohol Treatment Program Level III in 2022 (GD, p 133).
In terms of vocational training, Mr Fetalaiga has completed a Certificate II in Cleaning through Box Hill Institute (GD, p 135); a Kangan Institute Certificate III in Civil Construction (GD, p 136); and a Kangan Institute Certificate II in Community Service (GD, p 137). He has done five vocational courses through Bendigo TAFE: a Certificate III in Cleaning Operations (GD, p 138); a Certificate II in Kitchen Operations (GD, p 139); a Certificate II in Community Service (GD, p 140); a Certificate I in Access to Vocational Pathways (GD, p 141); and a Certificate III in Civil Construction (GD, p 142).
In response to direct questions from the Tribunal, the Applicant said he had taken Suboxone through “peer pressure. An inmate saw me under stress. He pressured me into trying Suboxone.” He said he took this drug only twice, and then a facilitator at the prison advised him to go onto a preventative programme to stop him using anything else.
Mr Fetalaiga said he was prescribed Buvidal (a brand name for buprenorphine, used as maintenance treatment for managing opioid dependence) regularly and that it had helped him, and he had lowered the dosage over time. Mr Cunynghame noted that on 3 October 2023 the Applicant had a discussion with a nurse in the detention centre and expressed the desire to cease taking his course of Buvidal (Exhibit A11). The clinical note taken by the nurse relevantly stated:
client requesting to cease buvidal.
discussed with client request to cease buvidal and advocated for client to remain on dose and wean as per standard protocol
client adamant that he would like to cease the program and remain engaged in supportive counselling with the drug and alcohol team
explained to client that cessation of the medication may lead to some withdrawal sx [side effects] in the coming weeks
When asked about this, Mr Fetalaiga said that he did not want to continue on the course and that he has the Bible to be his support and help him through hard times.
The Tribunal does not make an adverse finding about the Applicant electing to cease using buprenorphine. It would appear from the later clean record in the regular urinalysis assays (Exhibit A2) that he was not addicted to Suboxone (or any other illicit drugs) and the intervention by the facilitator and suggestion he go on a preventative medication programme was timely. However, he has been lowering his dosage and, in his evidence, struck the Tribunal as wanting to take command of this part of his life. He should be commended for that.
Because of the Applicant’s history of traffic offences, and the risk this sort of regular conduct is to the general public, the Tribunal finds that this primary consideration weighs relatively heavily against the revocation of the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
There is no evidence that this primary consideration is engaged, and so it weighs neutrally in this assessment.
Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration.
The Applicant came to Australia for a brief visit in 2007 and again for a visit in 2010. He came to settle in Australia, in company with his de facto partner Ms TP and their three young children in 2015. A fourth child has since been born in Australia.
It would appear from a chronology (TB, p 131) that Mr Fetalaiga has a regular and worthy employment history. He arrived in Australia in March 2015 and commenced employment with a cabinetmaker in August of that year. He held that job until November 2015 and then worked for a construction industry supplier until April 2016, then from May 2016 he was employed by a plasterboard firm until July 2017. He was employed by a transport company from August to December 2017 and then a chicken supplier until his sentencing hearing. He has thus contributed to the Australian economy through almost unbroken employment since he arrived in this country.
There were a number of character testimonials in the papers before the Tribunal. A church pastor who said he had known Mr Fetalaiga from birth (GD, p 78) attested to him being an ‘upright character’ who was a ‘well-respected family man.’ He wrote that the Applicant ‘expressed a deep sense of remorse in making such a serious mistake.’ The President of the Pakenham Eels Rugby League Club and Touch Association wrote (GD, pp 79-80) that Mr Fetalaiga had been a volunteer at the Club since 2016, helping with food preparation, maintenance of the grounds and marking out the lines. He described him as a ‘dedicated, valuable and reliable member of our club.’
There were also positive testimonials from another church pastor (GD, p 83) and from the head of grounds management at the Pakenham Eels Club, who described Mr Fetalaiga as ‘always the first to put up his hand and volunteer’.
In his personal circumstances form (GD, p 95), the Applicant recorded that he had nine uncles/aunts, 11 nieces/nephews and 25 cousins in Australia. Before the Tribunal was a positive testimonial to the Court, written in 2019 by his late brother, who sadly died in 2020. The Applicant listed four minor nieces (GD, p 93). He wrote that he would often see these four girls at family gatherings.
Although the Applicant has been residing in Australia for a relatively short time, some eight years, he has developed significant ties through his involvement in sport and his church, and his employment. This primary consideration therefore weighs in favour of revoking the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
As mentioned above, Mr Fetalaiga has four children, all of whom are minors. They are three boys: MF, who is aged 14; JF, who is 11; KF, who is 10; and a daughter, PF, who is aged seven (GD, p 91). In addition, the Applicant has cited four nieces (GD, p 93), and the ASFIC provides their ages, at the time of writing, as 17, two aged 14 (one of whom has now turned 15) and 13.He wrote in his Personal Circumstances Form submitted to the Department that he would often see these nieces on weekends and at family gatherings. The oldest niece listed had her eighteenth birthday shortly after the hearing and is no longer a minor.

The Tribunal is satisfied to divide these eight children into two categories in terms of this primary consideration. In respect of Mr Fetalaiga’s nieces, they have others who are parental figures in their lives. I accept that he has regular and positive interactions with them and that they would no doubt miss their uncle were he to be repatriated, but I do not think that disappointment would rise to a level of affecting their best interests, on the material before the Tribunal. Although it is not the same as personal contact, if repatriated he would be able to maintain contact with these minor children through telephonic and other electronic means. The Tribunal therefore makes a determination that the effect on the Applicant’s nieces carries neutral weight in this consideration.
In respect of the Applicant’s own children, before he commenced his prison sentence, the Tribunal is satisfied that Mr Fetalaiga played a fatherly and positive role in their lives. His evidence and that of Ms TP was that their lives revolved around their children before the Applicant was sentenced, and the Tribunal accepts that. Ms TP in her statement (GD, p 106) stated:
…I just want to acknowledge that Kerasoma is a very active and present father to our children, works every day even when he is unwell and is always there for our family, friends and community when needed.
Before the Tribunal were statements written by the Applicant’s three oldest children. MF wrote (GD, p 104):
My dad is a very present and loving dad, he is my best friend. What I miss the most about my dad is when he comes home from work and he’d always take me and my brothers and sister to a park or our favourite pool and then we’d go and to get some food. My dad has always been ...hard working [and] loving to us children and even though we know he’s tired he would still take us to rugby training or our music lessons.
The Applicant’s second son, JF, wrote similar sentiments to MF and also said (GD, p 103):
My dad calls me every day to say he loves us, and I wish he can come home…
Mr Fetalaiga’s third son, KF, wrote that the family moved to Australia when he was aged one and he calls Australia home. He said his father always plays with him, including wrestling and board games (GD, p 105).
In his oral evidence, Mr Fetalaiga said he spoke to his children “most days, if not every day” by telephone or video-call. When asked what it was mean for the family if he were deported, the Applicant said it would “cause major disruptions in my family and have a major impact on the children – and put pressure on my partner.”
In respect of the oldest child, MF, he has received a Year 7 Scholarship to attend a secondary school (Exhibit A5) and has also been accepted for a rugby league development programme (Exhibit A4).
The Tribunal directly questioned the Applicant about whether he had talked to Ms TP about what the family might do if he was deported. He responded, “They would like to stay here.” The Tribunal then suggested that could end his relationship with Ms TP. He responded, “It could. I would contemplate something along those lines.”
Ms TP in her evidence was asked how the deportation of the Applicant would affect her and the family. She responded: “A lot. The atmosphere in New Zealand is different. Having to relocate will be hard for the children and myself.” She was then asked if she would consider moving to New Zealand. Ms TP responded, “No. We grew up in poverty where we were living. I don’t want that for my children.” The Tribunal then asked Ms TP to clarify whether she would definitely stay in Australia with the children if Mr Fetalaiga was repatriated, or whether that was her preference. Ms TP responded, “That is my preference.”
The Tribunal asked Ms TP if she had spoken to the children about the possibility of a return to New Zealand. She responded, “I have, yes. They just want to be with their father. They’ve been there a few times to see their grandfather.”
The Tribunal is satisfied to make a determination under the Direction that the best interests of the Applicant’s four minor children would be best served if the mandatory cancellation of the visa were revoked. The children have lived in Australia in three cases since they were very young, and, in his daughter’s case, all her life. They are established at school (especially MF who has now started secondary school) and the Tribunal accepts relocation to New Zealand would be significantly disruptive for them.
There was somewhat conflicting testimony during the hearing, so it is not, in the Tribunal’s mind, clear that the Applicant and Ms TP have made a concrete decision on whether Ms TP and the four children would return to New Zealand in the event Mr Fetalaiga’s visa is not restored and he returns to New Zealand.
In the alternative, the repatriation of the Applicant’s father and their remaining in Australia would cleave the family in a way that would be unequivocally detrimental. The Tribunal finds that the weight this primary consideration carries in favour of revoking the mandatory cancellation of the visa is therefore substantial.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(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 of 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.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
The Australian community’s expectation is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ A superseded version of the Direction contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.
Direction No. 99 imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
The Tribunal finds that the weight of the deemed expectations of the community would be against restoration of the visa. The community expectations would no doubt take into account that the operative offence was not one that was intentional, but was one that resulted in the death of a person and in a circumstance where the Applicant was speeding and had been consuming alcohol in the truck cabin. The informed view would also take into account the number of other traffic offences Mr Fetalaiga has accumulated in both Australia and New Zealand.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, the parties have made no submissions that this other consideration is relevant. Mr Fetalaiga is a citizen of New Zealand and that is the country to which he would be repatriated.
The Tribunal finds that this other consideration is not engaged and therefore weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in the country of reference.
In terms of his age and health, there is evidence in Dr Walker’s report, referred to above, that Mr Fetalaiga has some PTSD symptomology. He is otherwise healthy, and the Tribunal considers that his illicit drug use in prison was isolated and not an ingrained characteristic of his state of mind. That conclusion is supported by the more recent urinalysis results. He said in his oral evidence that after he has spoken to his partner and children by video, he feels calm, because he is reassured that they are safe and well.
If Mr Fetalaiga were returned to New Zealand he would, as a citizen of that country, have access to the public health and welfare services provided by that Government. The Applicant said that his mother and older brother reside in Auckland, and he has a good relationship with both. When asked what he thought his life would be like if he was returned to New Zealand, Mr Fetalaiga said, “Pretty hard, having to go back. I would find it hard to make a living.”
Mr Fetalaiga confirmed that he had a good employment history in New Zealand, being employed in a spray-painting operation for some nine years and said he also had a “few trucking and scaffolding jobs.” He said if he were returned, he would find “another career path; I won’t be going into the trucking industry anymore.”
The Tribunal notes that the Applicant’s formative years were spent in New Zealand, and he was employed from 2003 to 2005 in a fast-food restaurant chain and then for a metal industries firm for nine years, from 2004 to 2013. He then worked for various transport-related companies from January 2014 to March 2015. It would seem to the Tribunal that the Applicant has been industrious and has almost always been employed throughout his adult life. This employment history, together with the gainful way he has spent his time in prison accumulating additional vocational qualifications through several TAFE certificates, would enhance his attractiveness to a future employer.
The Tribunal finds that Mr Fetalaiga is familiar with the language and culture of New Zealand, as someone who lived there from birth until he was 30 years of age, and who has close family living there.
Ara Poutama Aotearoa – the Department of Corrections of New Zealand, has published an information sheet titled FAQs for Returning Offenders. It deals with situations where a person might still have obligations to complete, such as parole, which is the case for the Applicant. The Adult Parole Board of Victoria granted him parole on 21 March 2023 to expire on 18 May 2025 (GD, p 39). There are arrangements for parolees under Australian laws to complete their obligations in New Zealand.
The Tribunal informed itself under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth)(‘the AAT Act’) and obtained a copy of the information sheet. It relevantly states:
What if I have no money?
Work and Income in New Zealand is like Centrelink in Australia. They will talk to you about finding employment and can provide income support. They’ll sort out some immediate things to support you in the first few days and they’ll continue to work with you to support your relocation to New Zealand.
If you are subject to a Returning Offenders Order, you are encouraged to discuss with your Probation Officer upon your arrival as they may be able to advise you further on this process and your other immediate needs.
The Tribunal accepts that the Applicant would face significant challenges if repatriated in being separated from his partner and four children. He says that he has family in New Zealand who he can contact, and the above information indicates there would be some initial New Zealand Government financial support on his arrival. The Tribunal accepts that the New Zealand economy is suffering a downturn at present, but also notes Mr Fetalaiga’s impressive work history and skill base, which would improve his employability.
The Tribunal finds that this other consideration weighs neutrally, as there are no particular impediments special to the Applicant if he were repatriated.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.
In this case, the victim of the operative offence died. The sentencing Judge read extracts from poignant statements from the victim’s parents about their sense of loss (GD, p 30), but this was in the context of a victim impact statement, and neither statement refers to the immigration status of the Applicant.
The Tribunal finds that this other consideration weighs neutrally.
Other consideration: Impact on Australian business interests (para 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. As held by Rangiah J in Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, at [68]) decision-makers must consider any impact on Australia’s business interests be considered, not just business interests of a particular scale or importance.
As discussed above, the Applicant has worked consistently in Australia since soon after he settled here, particularly in transport-related work. There would be some impact if such a skilled person were no longer in Australia, but the Tribunal does not consider that it rises to a level which would merit a weight being attached in the considerations required to be addressed in the Direction.
This other consideration therefore weighs neutrally.
SUMMATION
In relation to the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs relatively heavily against revoking the mandatory cancellation of Mr Fetalaiga’s visa. While the operative offence was not one which involved a criminal intent, it was a serious offence, and it was accepted by the Court that the Applicant acted in a grossly negligent way. The Tribunal has also found that there is a risk of the Applicant re-offending in terms of traffic offences, and that it is a real risk based on his driving history. The primary consideration relating to family violence has been found not to be engaged and to weigh neutrally. The primary consideration relating to the strength, nature and duration of the Applicant’s ties to Australia weighs somewhat in favour of revoking the mandatory cancellation of the visa. The primary consideration relating to the best interests of minor children in Australia weighs relatively heavily in favour of the Applicant. The primary consideration relating to the expectations of the Australian community weighs against the Applicant.
In terms of the other considerations, those relating to the legal consequences of the decision, the impact on victims and impact on Australian business interests all weigh neutrally in this assessment. The other consideration relating to the extent of impediments if removed also, after careful consideration, weighs neutrally.
In weighing all the applicable considerations individually and cumulatively, the Tribunal finds, in this case, that the weight of the two primary considerations relating to the protection of the Australian community and the expectations of that community are determinative. The Tribunal is not satisfied that there is another reason under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa. Therefore the reviewable decision was correct in law and, where a discretion was available to be exercised, the decision not to exercise it was the preferable decision.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

......................[SGD].................................................
Associate
Dated: 23 October 2023

Date of hearing:

11 October 2023

Applicant:

Advocate for the Applicant

Solicitors For the Applicant

Mr Keresoma Fetalaiga

Mr Mukesh Chand

Shiva’s Migration Services

Advocate for the Respondent:

Mr Adam Cunynghame

Solicitors for the Respondent:

Sparke Helmore Lawyers

ANNEXURE
Schedule of Exhibits
Statement of the Applicant, 27 August 2023  Exhibit A1
Urinalysis assay – June to August 2022  Exhibit A2
Letter from Ms TP, 8 September 2023  Exhibit A3
NRL Programme emails  Exhibit A4
Scholarship confirmation for Applicant’s son  Exhibit A5
LSR Corrections Victoria summary, 29 June 2022               Exhibit A6
LSR Corrections Victoria summary, 16 October 2019          Exhibit A7
File notes, HMP Fulham, 21-29 July 2020  Exhibit A8
Parole Suitability Assessment, 14 February 2023                Exhibit A9
Parole Suitability Assessment, 18 July 2022  Exhibit A10
IHMS clinical records, 3 October 2023  Exhibit A11
Section 501G documents (‘GD’), lodged 18 August 2023     Exhibit R1
Tender Bundle (TB) of Respondent, 19 September 2023     Exhibit R2

[2023] AATA 3415

23 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date of hearing:	11 October 2023
Applicant: Advocate for the Applicant Solicitors For the Applicant	Mr Keresoma Fetalaiga Mr Mukesh Chand Shiva’s Migration Services
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers