Figota and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 776

Figota and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 776 (7 April 2021)
Division:GENERAL DIVISION
File Number: 2021/0334
Re:Manuel Manaia Figota
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:7 April 2021
Place:Melbourne

The Tribunal, under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of visa – applicant is citizen of New Zealand – substantial criminal records – whether mandatory cancellation of visa should be revoked – contents of Direction No. 79 – primary considerations – protection of the Australian community – risk of re-offending – best interests of minor children in Australia affected by decision – expectations of Australian community – other relevant considerations – strength, nature and duration of ties – extent of impediments if applicant removed – additional submission that ICCPR Article 14 means Australia is applicant’s ‘own country’ – ICCPR not part of Australia’s domestic law – discretion not enlivened so decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 18B, 33A, 43
Migration Act 1958, ss 13, 14, 198, 499, 501, 501CA
Migration Regulations 1994, r 1.03, Sch 5, Special Return Criteria 5001(c)
Cases
Clegg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Re: [2020] AATA 3383
CPJ16 v Minister for Home Affairs [2020] FCAFC 212
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 230 ALR 370; (2006) 81 ALJR 1
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 1453 FCR 420, 433
Secondary Materials
International Covenant on Civil and Political Rights (Opened for signature 16 December 1966, entered into force 23 March 1976)
Migration Act 1958 – direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
Nystrom v Australia UN Doc CCPR/C/102D/1557/2007 (18 August 2011) (Decision of the Human Rights Committee)
REASONS FOR DECISION
Senior Member D. J. Morris
7 April 2021
GENERAL BACKGROUND

Mr Manuel Figota has brought to the Tribunal an application for a review of a decision made by a delegate of the Respondent on 13 January 2021 under section 501CA(4) of the Migration Act 1958 (the Act) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa, which was granted to him on 13 January 2014.
That visa had been cancelled on 13 June 2019 under section 501(3A) of the Act on the basis that Mr Figota had a ‘substantial criminal record’ as that term is defined in the Act and therefore fails the character test in the Act in section 501(6)(a) of the Act on the basis of section 501(7)(c) of the Act.
Mr Figota was advised that the delegate had declined to revoke the cancellation of his visa on 13 January 2021. Under section 500(6L)(c) of the Act, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision, the Tribunal is taken to have affirmed the decision under review. The eighty-fourth day in relation to this application is 7 April 2021, a date agreed to by parties at the commencement of the hearing.
The hearing was held on 26 and 29 March 2021 by videoconference, under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and in accordance with the COVID-19 Special Measures Practice Direction issued by the President of the Tribunal under section 18B of the AAT Act and dated 27 April 2020. The Applicant was represented by Ms Jennifer Samuta of Samuta McComber Lawyers. The Respondent was represented by Ms Olivia Hicks of The Australian Government Solicitor. Mr Figota gave evidence. Other witnesses who gave evidence were: the Applicant’s wife, who will be called ‘Mrs XW’ in these reasons; the Applicant’s mother, Mrs XM; the Applicant’s sister, Ms XS; Mr CM, a prospective employer of the Applicant; and Dr Jacqueline Yoxall, psychologist, who appeared as an expert witness.
The Respondent tendered a volume of ‘G’ documents (GD) (Exhibit R1), and a volume of supplementary ‘G’ documents (SGD) (Exhibit R2). The other documents admitted into evidence were:
·Written statement of Mrs XW dated 3 February 2021 (Exhibit A1);
·Written statement of Ms LM, former teacher of a child of the Applicant, undated (Exhibit A2);
·Letter from Ms FR, aunt of the Applicant, dated 2 September 2020 (Exhibit A3);
·Letter from Mr SR, undated (Exhibit A4);
·Letter from Mr CM dated 18 March 2021 (Exhibit A5);
·Psychological report of Dr Yoxall dated 15 March 2021 (Exhibit A6).
The Applicant submitted a written Statement of Facts, Issues and Contentions (‘ASFIC’) dated 25 February 2021 and the Respondent also submitted a Statement of Facts, Issues and Contentions (‘RSFIC’), dated 11 March 2021, to which the Tribunal had regard.
MIGRATION BACKGROUND
Mr Figota was born in early 1992 in Auckland, New Zealand. He first arrived in Australia on 1 May 1994 at the age of two with his parents. His parents were born in Western Samoa (now the Independent State of Samoa) and emigrated from New Zealand to Queensland. His family, including the Applicant, returned to New Zealand in May 2003 and resided there until remigrating to Australia in 2006 when Mr Figota was aged 14.
The Applicant has been in a romantic relationship with Mrs XW since 2009 and they married in 2016. Together they have four children, the oldest born in 2010. Mrs XW and all the children are Australian citizens. Apart from the 3-years and 5-months absence from 2003 to 2006, the movement record (GD, pp 70-71) indicate several absences but only for periods of weeks. The Tribunal understands this travel was to New Zealand and Samoa for various family purposes.
As a New Zealand citizen, Mr Figota held a Class TY Subclass 444 Special Category (Temporary) visa. This class of temporary visa entitles the holder to stay in Australia for an indefinite period but does not confer permanent residency rights.
On 13 June 2019, Mr Figota’s visa was cancelled (GD, pp 61-65) under section 501(3A) of the Act. He was invited to make representations to the delegate of the Minister, and on 1 July 2019 did so (GD, p 75). On 13 January 2021, the Minister’s delegate decided not to revoke the mandatory cancellation of Mr Figota’s visa (GD, p 183), and on the same day he was notified, through his authorised legal representative (GD, pp 184-209).
This decision not to revoke the mandatory cancellation is the one which is before the Tribunal for review.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test; and under section 501(3A)(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.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test’, or there is another reason why the mandatory cancellation should be revoked, as provided for under section 501CA(4)(b)(ii) of the Act.
If the Tribunal finds that Mr Figota fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked. In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate Mr Figota’s visa (Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, at [38] (North ACJ)).
Evidence in relation to the character test
Before the Tribunal was an Australian Criminal Intelligence Commission report dated 22 March 2019 (the ‘ACIC Report’) relating to the criminal history of the Applicant (GD, pp 27-28). This report records that on 21 December 2017 Mr Figota was convicted by the County Court of Victoria of the following offence: Aggravated burglary and sentenced to three years’ imprisonment. On the same date he was also convicted of the following other offences: False imprisonment (Common Law) (2 counts), for which he received 12 months’ imprisonment on each count, 9 months of each to count concurrently; a further count of False imprisonment (Common Law), for which he received 12 months’ imprisonment, eight months of which was to be served concurrently. The offence of Recklessly Cause Injury (9 months’ imprisonment, 6 months concurrent); the offence of Theft (6 months’ imprisonment, 5 months of which was concurrent); the office of Possession of Category B Longarm firearm without a licence (6 months’ imprisonment, 4 months concurrent); Assault in Company (4 months’ imprisonment, 2 months concurrent); Possession of Prohibited Weapon without Exemption or Approval (1 month imprisonment, to be served concurrently), a further count of Theft (1 month imprisonment, to be served concurrently). The aggregated sentence imposed by the Court was four years and six months. He was also convicted of the offence of Possess a drug of dependence and fined $350.
Finding in relation to the character test
On the evidence before me, the Tribunal finds that Mr Figota does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c), because I am satisfied that he has been sentenced to a term of full-time imprisonment for a period of 12 months or more and was serving a sentence of imprisonment on a full-time basis on the date that his visa was cancelled (GD, p 60).
Therefore, the remaining task for the Tribunal is to determine whether there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the mandatory cancellation of the Applicant’s visa should be revoked.
Direction made under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under section 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(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 his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction has the following principles at paragraph 6.3:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations’. The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia’; and ‘Expectations of the Australian community’. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations’; ‘Strength, nature and duration of ties’; ‘Impact on Australian business interests’; ‘Impact on victims’; and ‘Extent of impediments if removed’.
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and (5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
OFFENDING BACKGROUND
Apart from the offences outlined which the County Court dealt with on 21 December 2017, the ACIC Report detailed other Court appearances by Mr Figota, and the outcomes. Chronologically, with the earliest appearance first, the document recorded the following.
On 13 July 2009 the Applicant, still then a minor, appeared before Sunshine Children’s Court in Victoria on the charges of Robbery and Intentionally Cause Injury. No conviction was recorded, and he was placed on probation for six months to end on 12 December 2010.
On 18 September the same year, Mr Figota was before Beenleigh Magistrates’ Court in Queensland charged with the offences of Assault or Obstruct Police Officer and Unauthorised Dealing with Shop Goods, the offences alleged to having occurred in August 2009. The Court did not record a conviction and Mr Figota was released on a three-month good behaviour bond and recognisance of $200.
On 17 August 2011, Mr Figota was before Beenleigh District Court in Queensland. He was convicted of the offence of Grievous Bodily Harm, on 3 September 2009, and sentenced to a 15-month term of imprisonment, to be suspended for two years.
OPENING SUBMISSION FOR THE APPLICANT
Ms Samuta said that the Applicant relies on the ASFIC lodged with the Tribunal. She submitted that the sole issue before the Tribunal is whether there is another reason to revoke the mandatory cancellation of Mr Figota’s visa under section 501CA(4)(b)(ii) of the Act. She referred to the conclusion in Dr Yoxall’s psychological report that the Applicant was a ‘low risk’ of re-offending, and the fact that he has four minor children, all of whom are Australian citizens. Ms Samuta submitted that the impact on the children was determinative in this application, added to which was the impact deportation would have on the Applicant’s broader family, especially his wife.
OPENING SUBMISSION FOR THE RESPONDENT
Ms Hicks submitted that the Respondent relies on the RSFIC and noted Mr Figota’s history of offending. She said at the time the RSFIC was submitted Dr Yoxall’s report had not been received, but submitted that, having now read it, it did not change the position of the Respondent. Ms Hicks submitted that the Minister’s view was that there was at least a moderate risk of Mr Figota re-offending and that the decision under review should be affirmed, notwithstanding the Applicant’s significant ties with Australia through his four children, nephew and extended family.
ORAL EVIDENCE OF APPLICANT
Mr Figota confirmed he was born in Auckland, New Zealand in 1992 and when he was about two years old, he came to Australia with his parents and his siblings. He said he attended high school in a suburb of Brisbane and finished school in 2009. He then worked for an ice cream vendor and undertook other work, including agency work involving manual work and goods handling in a warehouse.
Mr Figota said he moved to Victoria in 2012 because he wanted to start afresh with his wife and, then, one son. He said he worked for a tyre-fitting company in a Melbourne suburb, and this was a full-time position.
Ms Samuta asked Mr Figota if he has seen the ACIC Report, which he confirmed he had. In respect of the 2017 offences for, among others, aggravated burglary, the Applicant said he would not make any excuses. He said he had made wrong choices and has thought a lot about his offending while in prison. He said he thought his punishment was fair.
In respect of his time in prison, Mr Figota said it is the first time he has been incarcerated and it had been an ‘eye-opener’, and it is the first time he has been away from his family for a prolonged period. He said he had learned a lot in prison and had undertaken courses and counselling.
When asked what courses he had done, Mr Figota said he had done an anti-violence course and several others and attended Alcoholics Anonymous meetings. He said the courses had helped him a lot in how to deal with emotions and decision-making in the future.
When asked how the Tribunal can be satisfied that he would not re-offend, Mr Figota said his eyes had been opened to what is important. He said he had put his family through a lot, especially his children, and wanted to prove not only to the Tribunal but also to his children that he has changed for the better.

In respect of his relationship with his wife, Mrs XW, Mr Figota said they had been together since Year 10 at school; she was in the year below him. He said they now had four children. Before entering prison, Mr Figota said he would describe himself as a family man. He said his son had broken down at school and opened up to his teacher about the stress he was under because of his father’s incarceration. Mr Figota said: “I didn’t realise by doing what I’ve done it would affect my family so much.”
Mr Figota said he speaks daily to his family by phone and they visit him every weekend, except during restrictions imposed by the pandemic on visitors, during which time they had to make contact by video.
In respect of potential deportation, Mr Figota said that Mrs XW said she would come with him, but he didn’t want his wife and children to go to New Zealand because “everything would be harder for them there. They are settled down at school. Their cousins and aunties and uncles and grandparents are here in Australia. I’ve put them in this position by what I’ve done; I’ve hurt my family more than myself.”
Speaking about his family, Mr Figota said that he has two sisters and two brothers, and only an older sister was born in New Zealand, all the rest of his siblings were born after his parents emigrated to Australia. He believed one sister and two younger brothers were Australian citizens, and that his parents had become naturalised around 1997.
In respect of family in New Zealand, Mr Figota said that he had some ‘second cousins I’ve never seen since I was a child’.
Under cross-examination, Mr Figota confirmed that when he was aged around eight or nine his family relocated to New Zealand and he went to school there for about two years. He said that he had grandparents in New Zealand at that time and that he and his older sister would help them out with small household chores, but they had sadly since passed away.
Mr Figota said that he did meet other extended family members at Sunday gatherings on occasion while living in New Zealand but said he didn’t know them well.
When asked about the offences in 2008 for robbery when he was aged 16, which occurred in Victoria, Mr Figota said that he had come down from Queensland for school holidays and stayed with an uncle in Melbourne who had two sons his age. He said: “we were at a park and something happened and led to a fight and argument that I did participate in.”
Ms Hicks asked if he remembered that the victim was punched in the head, but Mr Figota said he could not remember the details other than there had been a fight.
Ms Hicks asked Mr Figota whether he kept in contact with those cousins, but he said that his parents stopped him seeing them. He occasionally would see them at family funerals.
In respect of the 2009 offences dealt with at the Beenleigh Magistrate’s Court which led to the charge of Assault or Obstruct Police Officer, Mr Figota said that he wasn’t too sure. He thinks it occurred at a Hyperdome shopping centre involving clothing, but he could not remember assaulting police or even running away.
In respect of his appearance at Court in 2011 for a charge of Grievous Bodily Harm in September 2009, Mr Figota agreed that he punched the victim in the jaw, causing an injury. He said that ‘something happened’ between the victim and a friend of his. He accompanied his friend to see the victim at a large shopping centre at Surfers Paradise, “My friend looked scared, so I approached and punched the victim.”
Ms Hicks asked Mr Figota whether he remembered undertaking counselling before the 2009 incident, which is referred to in the sentencing remarks, but he said he did not recall.
In respect of the 2016 offending which led to the range of convictions in 2017 and ultimately to the cancellation of his visa, Mr Figota confirmed that he remembered entering into a house and assaulting the homeowner, a Mr Nugent, demanding drugs and money, tying up Mr Nugent and another person present at the house, and making them lie on top of each other in a bath. He agreed that the whole period lasted around an hour and that he stole some items from the house.
Mr Figota agreed that he had been using methamphetamine before the incident and was, at that time, using it “every second day. I was using a lot, but couldn’t say the amount.”
Mr Figota said he went to Mr Nugent’s house that day because he had received a call and asked if he would go there. In answer to a direct question from the Tribunal, Mr Figota said he knew he was going to the house to do something illegal.
Mr Figota said that the victim was “a known drug dealer and known in the area as a drug dealer and known to shoot people if they came [to his residence]. He was known to be quite aggressive. The person who called me knew I wasn’t scared of confrontation.”
In regard to a second incident in March, Mr Figota said he had been looking for a person who was often seen at a house in a particular suburb, so he went there and asked if the person was at the house, and kicked the door and went to the garage and banged on the door. He said he then went to another house and sat down with the victim, then punched and assaulted him, staying there for what he thought was around 40 minutes, but he accepted Ms Hicks’ suggestion it could have been for around two hours.
Mr Figota said he was trained in boxing but had to give it up because of an eye injury. Ms Hicks referred to a reference in Dr Kiara Bird’s report (GD, p 113) which recorded that the Applicant had done bare knuckle fighting for money. Mr Figota said he wouldn’t call it that. He said he would represent his school at fighting and then fight a person from another school, and sometimes win bets that he could beat the other person.
Mr Figota agreed that he moved to Melbourne in 2012 and wanted to get away from bad influences in Brisbane and make a fresh start with his new son. He said he initially moved south by himself and stayed with an aunt and uncle. He said he was doing well and secured a job with a tyre-fitting retailer. He would go to work with his cousin’s husband and noticed that he would stop at a public toilet, so he asked why he did so regularly. He said that he was then introduced to methamphetamine and invited to try it. He said it quickly became a normal thing for him to ask him for this drug.Mr Figota said he started to use ‘ice’ heavily.
Asked about other illicit drug use, Mr Figota said that he started using cannabis aged 15 but didn’t like it and, although he would have it ‘now and then’ it was not like his taking of ice, which was ‘every day’.
When asked how he paid for the ice, Mr Figota said “I never spent a penny on it. I would go to people who deal with ice and take it off them, or they would give it to me.” When asked whether he meant that he would take it by force, Mr Figota agreed.
Dr Yoxall recorded that the Applicant was vague about his drug use and had told his defence lawyer he did not have a drug problem. Mr Figota responded: “The way I see it, when I went into custody in 2016 for seven months, I had no urges. I went out on bail. Had a home curfew. No desire to have the drug. I know I don’t want to do it again. I don’t really have a drug problem. I don’t know if I do or I don’t.”
Asked why he told his lawyer that he only used methamphetamine ‘a handful of times’, Mr Figota responded that he was embarrassed because his family did not know this about him.
Ms Hicks referred to the fact that he had undertaken several sessions of a 24-hour course in prison relating to drug and alcohol use but had not completed it. Mr Figota responded: “The reason I didn’t complete it was that it was Waitangi Day and I was preparing some cultural food. I missed a class. They told me I couldn’t complete the course. I am on the waiting list for the next course. My parole officer told me it wasn’t a requirement for parole.”
Ms Hicks asked Mr Figota if he was released into the community, did he plan to do any drug courses. He responded: “If I’m told I have to do a drug programme, I am more than open to it. For me, I will probably need counselling. I believe my emotions led me astray.”
Mr Figota was asked about links with a bikie club. He responded that his cousins were members of a motorcycle group but while he knew who they were, he did not associate with the group, and never went to their club house. He then clarified that when he used the term cousins, he did not mean blood cousins, he meant people who he called ‘my family’.
Mr Figota said that if released he definitely intended to undertake therapy with his wife. He said that before he had done counselling he didn’t talk about things and that, when he grew up, he was always under the impression that a man never cries or looks weak, but he has now become comfortable with expressing his feelings and intended to write to his wife about how he feels.
The Applicant said that he initially refused to do the group work that Dr Bird recommended, because he did not want to talk about his offending in front of other inmates because he felt he would lose face. He said it is hard to avoid confrontation in prison, but after his counselling he has learned strategies to avoid it and had no violent incidents in four years in prison.
He said at one stage he had asked to go into isolation in the prison because he might lose control. Mr Figota said he asked a nurse, because he thought he ‘wasn’t coping so well’, but would not have made the request before, had he not undertaken counselling: ‘the old me would have just reacted’.
Asked about his nephew, J (GD, p 85), Mr Figota said J had spent a lot of time with his family because his mother, the Applicant’s sister, works every day. He agreed that J has his own parents.
Mr Figota said he had discussed what would happen if his visa is not restored and Mrs XW wants to return with him to New Zealand, but he didn’t want this. He agreed that their younger daughter, A, was born just after he was arrested in 2016 and that he had not had much time with either A, or his son, L, who was born in 2018.
In terms of his health, Mr Figota said he had dyslexia and had dislocated his shoulder while playing rugby in prison. He said that he is currently unable to see in one eye as a result of severe cataracts and was awaiting surgery at the Eye & Ear Hospital, but these were the only medical conditions he has.
In answer to direct questions from the Tribunal about his travel in 2014, Mr Figota said that he had travelled to Samoa for the funeral of his grandfather and then he and Mrs XW and the children, and his siblings, had attended a family reunion in New Zealand.
ORAL EVIDENCE OF MRS XW, WIFE OF THE APPLICANT
Mrs XW gave evidence by telephone. She said she was born in New Zealand and came to Australia in 1997 and has since become an Australian citizen. She said she had been in a relationship with Mr Figota for 13 years and they married in 2016.
Before he commenced his prison term in 2017, Mrs XW said Mr Figota had been working and was the main caregiver and provider for the family.
Mrs XW said they had kept in contact during his incarceration through letters, phone calls, pictures, and video calls, particularly since the pandemic. She said she had observed a lot of positive changes in her husband since he has undertaken courses in prison. She said he is more understanding and ‘more present’. When asked what she meant by this, Mrs XW said he had formerly been very shy and now speaks more openly about what he is feeling and expresses himself more.
Mrs XW said that Mr Figota plans to cut ties with friends that led him down the wrong path if he is released and would seek mental health help if he needs it. She said he would seek counselling and perhaps a psychologist.
Mrs XW said she has been trying to carry out both parental roles as best as she can while her husband has been in prison, “but I know I can’t”, and said that their oldest, X, had become emotional at school and had been offered counselling. She said that their second child, a daughter, R, ‘is stronger and knows what is going on’ but has trouble sleeping sometimes and misses her father.
In respect of what would happen if Mr Figota’s visa is not restored, Mrs XW said her husband “wants me and the children to stay in Australia, but I don’t think the children could cope mentally or emotionally without their father here. It would take a toll on them and impact their lives if he is moved back to New Zealand. No amount of psychology could help if their Dad can’t be part of their lives. I would be heartbroken. I have anxiety but I haven’t been able to put myself first for the last five years.”
Mrs XW said she thought they would be happy if they all moved to New Zealand together, but it would not be the same as living in Australia. She confirmed that her parents live in Queensland, as do all her siblings.
Under cross-examination, Mrs XW said she was aged four when she came to Australia and had no family left in New Zealand. She said she was aware of the crimes Mr Figota had committed and the Court dates.
Ms Hicks asked Mrs XW about two incoming passenger cards completed in the name of Mr Figota in January 2014 and March 2013 (GD, pp 68 and 69). Mrs XW confirmed that they were in her handwriting and she completed them on her husband’s behalf. Asked why she had left blank the boxes next to the question on the card that reads: Have you had any criminal conviction/s?, Mrs XW said she was under the impression the answer related only to time spent in prison, which is why she left them blank.
When asked about the Applicant mixing with the wrong people, and whether she was referring to when they were living in Brisbane or Melbourne, Mrs XW said: “Throughout his life. He’s always mixed with the wrong crowd. His friends were a bad influence.”
Mrs XW said she was not aware of Mr Figota’s use of the drug ‘ice’ at all, until the police came to their house in 2016. She said she was heavily pregnant with L at the time and under a lot of stress.
Mrs XW said it was her preference to move to New Zealand if Mr Figota was repatriated, but she knew that her husband did not want that.
ORAL EVIDENCE OF MRS XM, MOTHER OF THE APPLICANT
Mrs XM gave evidence by telephone and confirmed she had written a letter in support of her son (GD, p 137). Mrs XM said that she had been born in Western Samoa and arrived in Australia in 1994. She is an Australian citizen, as is her husband. Mrs XM said of her five children, only Mr Figota has not been naturalised, because when the family applied in 1996, she had omitted to include his name.
Mrs XM said that Mr Figota is her second-oldest child and was quiet growing up and very respectful. She said he acted as a ‘father figure’ for the younger children and played a lot of sport in his youth and was brought up in the Roman Catholic faith.
Mrs XM said she believed Mr Figota should be allowed to stay in Australia because his family have suffered a lot over the last five years and that it was better for him, mentally, to stay in Australia because all of his family are here. She said it would be heartbreaking for her if her son was deported. Mrs XM said she last went to New Zealand around two years ago and usually goes to Samoa around three or four times a year, transiting New Zealand only because there were no direct flights from Australia to Samoa.
ORAL EVIDENCE OF MS XS, SISTER OF THE APPLICANT
Ms XS gave evidence by telephone and confirmed she had written a letter in support of the Applicant (GD, p 140). She said she is an Australian citizen. Ms XS described Mr Figota as a ‘protective older brother’ who was quiet and shy.
She said she believed Mr Figota’s visa should be restored because of his children and because he has changed. She said she had kept in touch with the Applicant by phone calls and visits to the prison before the pandemic stopped the latter.
Under cross-examination, Ms XS said she felt the Applicant had changed because of the courses he had done in prison: “He never opens up, but I can tell he has changed and opened up. He talks about helping with his anger and getting his emotions out. I think it shows he wants to change.”
ORAL EVIDENCE OF MR CM
Mr CM gave evidence by telephone. He confirmed that he had written a letter offering employment to Mr Figota if he is allowed to stay in Australia (Exhibit A5). Mr CM said he was the managing director of a company that delivers newspapers and magazines of a major publishing house. He said he would offer Mr Figota a job as a distribution driver, which would be full-time, 40 hours per week.
Under cross-examination, Mr CM said he was aware of Mr Figota’s offending history and said he had known Mr Figota through the family in New Zealand and had kept in touch. He was happy to offer Mr Figota a job.
ORAL EVIDENCE OF DR YOXALL
Dr Yoxall confirmed she had provided a psychology report on Mr Figota dated 15 March 2021 (Exhibit A6). She said, in terms of motivation, that people facing deportation do usually present as highly motivated in respect of engaging in therapy and her view was that Mr Figota has persisted with both individual and group sessions, despite discomfort and appeared to have a genuine motivation to engage.
Asked why she applied the Violence Risk Appraisal Guide (VRAG) assessment tool, Dr Yoxall said this was a greater test on whether a person is likely to engage in violence in the future and assessed risk factors or ‘scores’ of a person. Asked why she then applied the LSI-R assessment tool, Dr Yoxall said this measure is used by mental health professionals to assess risk of re-offending and the higher the risk, the higher the rehabilitation needs.
Asked what was the effect of the LSI-R score of 17, Dr Yoxall said that the result was obtained by comparing Mr Figota to a normative sample and that this score put him in the ‘low to moderate range’ of re-offending, but one always have to take into account the fact that he is currently in prison; she was unaware of any breaches but stated that behaviour in custody is not always optimal.
Dr Yoxall said that her statement of a ‘low risk’ of re-offending was conditional, and the conditions were no further substance abuse, an absence of negative peer influences, and anger management, and that these will determine his likelihood of re-offending. All of these would have to fall into place, and any change would drive the risk of re-offending up.
Dr Yoxall said that Mr Figota would need ongoing engagement with psychological treatment and a suite of strategies to assist him to cope with stress and manage his decisions, and think about the consequences of those decisions. Dr Yoxall said she understood Mr Figota has been practising strategies with his wife and other family members and would need to work on that in the community and engage with a psychologist for around two years. She noted that he has a protective family, but also that he had them in place before his offending.
Under cross-examination Ms Hicks asked what the difference was between LSI-R and the LS/RNR assessment tool Corrections Victoria had used. Dr Yoxall said the two tools were the same model but the LS/RNR model is used by corrections staff and the LSI-R by mental health professionals, but there is unlikely to result in a gross difference.
Ms Hicks then reminded Dr Yoxall that the Corrections officers assessed Mr Figota as having a ‘high risk’ of offending overall. Dr Yoxall said she had considered that ‘long and hard’ and noted that the Applicant had been a protector for others as, in her opinion, part of being accepted into a group. She said the reason she had assessed him differently was because she looked through his history of prison conduct and he appears not to be seeking out bad influences, and appeared quite different when she assessed him in February 2021.
Dr Yoxall noted that Mr Figota has not used illicit drugs but was in a controlled environment. She said he has no history of alcohol abuse and that when he talked to her about drug use, he indicated that his use has escalated over time. Dr Yoxall said substance misuse is a key factor the Applicant needs to watch for.

Ms Hicks asked whether the fact that he had previously had some counselling and had a supportive family, would those factors reduce the risk of re-offending. Dr Yoxall said that on their own, they would not. Her view was that Mr Figota ‘will need to do a lot more’. She said that maturity is a big factor, noting that Mr Figota was a young father and had undertaken some work towards cognitive maturation with Dr Bird.
APPLYING THE DIRECTION
As discussed above, decision-makers, including the Tribunal, must take guidance from the Direction because of the provisions of section 499 of the Act. The paragraph references are to Part C of the Direction.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 13.1):
When considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community. The mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
The nature and seriousness of the conduct (paragraph 13.1.1):
This part of Part C of the Direction requires the Tribunal to have regard to certain listed factors, as relevant to the particular circumstances.
The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously (Paragraph 13.1.1.(a)):
Before the Tribunal was a transcript of proceedings before Beenleigh District Court in August 2011. That relates to an incident at the ‘Australia Fair’ shopping complex where the Applicant punched a victim hard to the left side of his face. He then said, “I’m sorry, the boys were telling me to hit you.” The police approached to ask what had happened, but the victim said he didn’t want to make a complaint. The victim then returned to school and went to the sick bay. After he got home his parents took him to the local hospital. He was x-rayed and told his jaw was broken. He was admitted to hospital for treatment for three days and had surgery on his broken jaw, which was wired in two places and some of his teeth had to be removed to enable the surgeons to wire his jaw into place.
The prosecutor noted that Mr Figota, who was aged 17 at the time of the offending and 19 at the time of the Court appearance, pleaded guilty at an early opportunity, but that it was an unprovoked attack by someone who was willing to punch a person on behalf of his friends.
The defence counsel submitted that Mr Figota had recently become a father, and had secured employment as a roofing contractor, and had played representative football. The Court sentenced him to 15 months’ imprisonment but decided to wholly suspend it on that occasion.
In 2016 Mr Figota offended in two incidents, in January and in March. In the January 2016 offending, Mr Figota and his co-accused visited a residence at 10.30 pm in the evening. The occupant, Mr Nugent, was at home watching television with a friend, Mr Khalif. They heard a noise and Mr Nugent went to investigate. As he walked towards the door, the Applicant punched Mr Nugent in the face. The entry into the house with the intent to assault formed the basis for the charge of Aggravated burglary. The immediate assault of the occupant formed the basis for the charge of Recklessly causing injury.
The sentencing Judge recorded (GD, p 31) recorded that Mr Nugent later had to receive treatment at hospital for injuries including swelling, bruising and lacerations to his jaw, pain and tenderness to his ribs, the loss of one tooth and the loosening of others. A dental plate Mr Nugent was wearing was broken during the assault. His Honour went on:
The offences of false imprisonment alleged in Charges 3 and 4 are based on what then followed. As a result of being punched, Mr Nugent fell onto the couch. You then jumped on top of him. One of your male co-offenders then forced Mr Khalif to lie on the ground. The two of you then proceeded to place pillow cases over the heads of the two victims and bind their hands with electrical tape. The two of you then made demands for drugs and money. The second of your co-offenders then entered the house and together with the other co-offender, stole items during a search of Mr Nugent’s home. Mr Nugent and Mr Khalif were then led to the bathroom and forced to lie on top of each other in the bathtub. The offenders then closed the door behind them as they left. The offenders remained in the bathroom until they were satisfied that the offenders must have left. They managed to free themselves by stretching the electrical tape that was used to bind their hands together. Mr Nugent then called police from a nearby public phone box.
Mr Nugent then discovered items had been stolen from his house: two televisions, two laptop computers, a mobile phone, keys to his motorbike and car and some clothing. The Judge noted that the charge of Theft was not on the basis that Mr Figota physically took the items, but he was complicit with those who did, by some prior arrangement, and noted the Applicant did not retain any of the items.
In the second incident, in March 2016, Mr Figota went to a house. Another man was brought there by two other identified men. The man’s wallet was taken from him. He was kept there for approximately two hours, during which time he was physically constrained from leaving the house by fear of physical reprisal. The Judge stated (GD, p 35):
He was hit in the face approximately five times during that time. He was unable to identify which of the three males hit him on those five occasions but could say that you threw the first punch. Thus you fall to be sentenced for the related summary offence of Assault in Company on the basis that you were responsible for delivering the first punch and complicit in the delivery of the other punches through the agreement, arrangement or understanding you had reached with your co-offenders to assault [name redacted] in the manner that he was.
The Judge then referred to the police visiting Mr Figota’s residence and arresting him. They also seized the clothing he wore during the first incident, a home-made spear (which formed the charge of Possessing a Controlled Weapon), a sawn-off shotgun in a cupboard, which the police ascertained had been stolen by persons unknown during a 2015 burglary; a stolen television set and a zip lock bag containing a small amount of crystal methamphetamine, which gave rise to a drug possession charge.
The Judge noted that Mr Figota made full admissions about the offending against Mr Nugent but denied any involvement in the second incident. He admitted the drug in the bag was ice and told police he had taken it from one of his cousins, but denied using that type of drug himself. The Applicant also denied any knowledge of the firearm and the spear located at his house.
In sentencing, the Judge said (GD, p 43):
This instance of aggravated burglary was, in my view, a relatively serious example of its type. It was far from a spontaneous event. You and others had spoken about your shared belief that Mr Nugent had previously acted inappropriately towards another friend’s daughter. A plan was hatched and you were willing to provide support. The offence can thus be seen as pre-meditated and motivated by vigilante-style thinking. The entry was of the victim’s private home at night and undertaken with an intent to assault.
The aggravated burglary offence was complete immediately you had gained access to the victim’s home. Therefore, your act of punching him to the face shortly afterwards represents distinct and separate criminality on your part. It was callous and cowardly. He was entitled to feel safe in his own home. The punch you delivered must have been forceful, given the damage that it inflicted.
You then played an active role in restraining Mr Nugent and his friend. The circumstances in which that took place must have been very frightening…
The false imprisonment of the other victim…must also be considered serious. Whilst you are not to be held criminally liable for what occurred earlier, you were part of a lengthy episode which lasted for about two hours.
It is clear to me that Mr Figota has committed violent crimes, in each instance as outlined above, unprovoked. When asked directly by me if he has played the part of a ‘strong man’ for others, Mr Figota accepted that description.
There was no evidence before the Tribunal that the Applicant had committed any sexual crimes.
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (Paragraph 13.1.1(b)):
There is no specific evidence before me of crimes of a violent nature against women or children.
The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious (Paragraph 13.1.1(c)):
The only offence that might fall into this category was the charge for Assault or obstruct a police officer; there was a lack of detail about this matter and did not lead to a conviction. I am prepared to accept Mr Figota does not remember any assault of a police officer, but obstructing an officer in the course of his duties would also fall within the scope of this offence. In any event, because of the lack of other evidence on this particular charge, the Tribunal is unable to make any further definite pronouncements.
The sentence imposed by the courts for a crime or crimes (Paragraph 13.1.1(d)):
Mr Figota received a substantial custodial sentence for the 2016 offending, which reflected the gravity of the suite of offences to which he pleaded guilty. He was fortunate in respect of his conviction for Grievous Bodily Harm in 2011 to receive a wholly suspended sentence, especially given the significant injuries he inflicted on the victim by a single punch, and he appears not to have taken note of the leniency exercised by the sentencing Judge on that occasion to improve his future conduct.
The frequency of the Applicant’s offending and whether there is any trend of increased seriousness, and the cumulative effect of repeated offending (Paragraphs 13.1.1(e) and (f)):
The Applicant has not offended frequently, but he has amassed a record of serious and violent offending at a relatively young age which is lamentable. The Judge noted that in terms of the 2016 incidents, both involved false imprisonment of victims, and they were spaced two months apart, so there was a cumulative element to the offending, which was reflected in the sentences passed.
Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (Paragraph 13.1.1(g)):
The Tribunal notes the evidence of the incoming passenger cards of 2013 and 2014 and that they were not filled in truthfully. I accept that Mrs XW filled them in on behalf of her husband owing to his poor eyesight (see also Mr Figota’s letter to the Department at GD, p 93), but I do not find her explanation that the question regarding whether the passenger had ‘any criminal convictions’ could honestly be interpreted as referring only to whether the person had served a prison sentence. If that evidence is to be accepted, logically the box ‘no’ would have been ticked at that time, rather both the boxes being left blank.
I consider this was a deliberate evasion of information in the knowledge of the person filling out the form. However, I am prepared to accept Mrs XW’s evidence that it is her handwriting on the form, although he says he signed the form after it had been filled in, and I cannot be satisfied that the Applicant knew, because of his eyesight, how she had answered the questions on either occasion, so I do not conclude on the evidence that this was a deliberate provision of false or misleading information by Mr Figota.
Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour) (Paragraph 13.1.1 (h)):
There was no evidence before the Tribunal that Mr Figota has received a prior warning from the Department, before the cancellation of his visa in June 2019.
Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including 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 is serious, as is an offence against section 197A of the Act (Paragraph 13.1.1(i)):
Mr Figota has not been in immigration detention.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Paragraph 13.1.2):
In considering the risk to the Australian community, the Tribunal must have regard, cumulatively, 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 the person engaging in further criminal conduct, taking into account available information and evidence on the risk of re-offending.
There was evidence before the Tribunal that Mr Figota had undertaken a number of courses in prison. He completed the Moderate Intensity Violence Program in August 2019 (GD, p 131), and the Talking Change Program in May 2019 (GD, p 121). He has undertaken individual and group counselling under the auspices of Dr Bird.
In addition, Mr Figota has undertaken a number of units offered by Bendigo TAFE, towards a Certificate I in Vocational Pathways (GD, p 123); a Certificate II in Kitchen Operations (GD, p 124); a Certificate II in Cleaning Operations (GD, p 126); a Certificate I in Employment Pathways in February 2020 (GD, p 128) and a Certificate II in Skills for Work and Vocational Pathways, also in February 2020 (GD, p 129). He also received a certificate of appreciation for participating in a musical entertainment at Middleton Prison (GD, p 122).
While the Applicant denied any violent behaviour in prison, Dr Yoxall in her report referred to prison note of February 2018 where Mr Figota, who was working as a kitchenhand, was “using muscle to make others do his work”. Dr Yoxall also refers to a reference to ‘recent issues at Lodden Prison’ and later references to Mr Figota being polite and compliant with his work, needing minimal direction from staff. There are references in the report to the Applicant losing his temper, and I note that he told Dr Yoxall that in the past he had lost his temper and ‘just walked away’ from jobs he was employed in, when in the community.
Dr Yoxall’s conclusion from applying the LSI-R assessment tool was that Mr Figota scored 17, which was in the range of a ‘low to moderate risk of general reoffending’. In terms of her overall assessment of risk, she wrote:
Estimation of risk of reoffending is complex at best. In this matter, the key predictors of reoffending remain as: capacity to manage anger and conflict in a non-violent manner; continued work to build a sense of self, apart from the role of being physical protector or defender of others; abstinence from illicit drugs; and influence of antisocial peers or associates. In my opinion Mr Figota has done substantial psychological work and rehabilitation to address these risk factors. If he is able to manage these issues and maintain the gains he has made in rehabilitation, once he returns to the community, my assessment of his risk of reoffending is that it is low. Mr Figota will need support to maintain these changes and implement new strategies once he returns to the community. If he is unable to maintain his gains and use the strategies, he has been taught to manage these issues, and if he resumes the use of illicit drugs, then his risk of reoffending would be higher – moderate at least.
The probability that Mr Figota will be successful in abstaining from illicit drugs whilst in the community or continuing to implement strategies learnt, remains generally untested, apart from a period of just under 12 months when he was on bail.
I note that Dr Bird referred to her discussions with the Applicant about his role with an outlaw motorcycle group where, although never a patched members, he acted as an ‘enforcer’ and she said he ‘has reported enjoying the opportunities this brought for perpetrating violence on others’.
Dr Bird reported that Mr Figota told her that he needed help with his thoughts and behaviours which were:
characterised by appetitive and extreme violence, a hair trigger temper, and paranoia in relation to the intentions of others, which would often cause him to interpret benign situations as threatening. He spoke of others fearing him, but noted he often acted out first because he himself was deeply fearful; Mr Figota also expressed fear in relation to his own violence potential, noting that often it had been safer for himself and others when he was separated.
I note that this summary comes from Dr Bird’s first session with the Applicant, when he was very slowly opening up to her about his own problems. It does indicate some insight into his own conduct. I am however concerned that, even accepting Dr Yoxall’s assessment as a ‘low to moderate risk’ of re-offending, she emphasised in her oral evidence that this was conditional on several other factors falling into place, notably avoiding substance abuse, certain peers, and situations where his anger could inflame. Of particular concern to me is that in the instances of violence, Mr Figota seemed more than happy to be the ‘enforcer’ or the strong man, in one case going along to see someone he didn’t know and deciding to execute a single punch that severely injured the victim’s jaw, and in two other cases proceeding to act as some sort of vigilante vanguard, on behalf of others, and inflicting violence on victims. This indicates to me a concerning willingness to apply violence, not in a reactive way, but in an unprovoked, deliberate and active manner.
I also note that Mr Figota was found by the police to be in possession of a stolen firearm and a spear at the residence he shared with Mrs XW and their children.
There has been some good progress in Mr Figota’s engagement with Dr Bird and in undertaking some other courses, but even with this, I am not satisfied that there is a lower than a moderate risk of re-offending, and it is a real risk, especially if any single one of the factors identified by Dr Yoxall fall away.
Overall, this primary consideration weighs heavily against restoring the visa.
Best interests of minor children in Australia affected by the decision (paragraph 13.2):
The Direction requires the Tribunal to make a determination about whether the revocation of the visa is in the best interests of any relevant minor child, where the interests of a relevant minor child may vary, the Tribunal should make a separate determination.
Mr Figota has four children, in age a son X born in 2010; a daughter R, born in 2011; a daughter A, born in 2016, and a son L, born in 2018. He also cited a nephew, J, the son of his sister, as a minor child who would be affected if his visa was not restored.
The Tribunal considers that it should make two determinations, one in relation to Mr Figota’s four minor children, and one in relation to his nephew.

In relation to the nephew, J, the Tribunal accepts the evidence that he has spent a lot of time in Mr Figota’s household, because of the work obligations of his own mother. Mr Figota described J in his evidence as “like my own son”. However, he also admitted that J also has his own parents and there was no evidence before me that J’s parents do not perform the usual parental role. While, given the apparent closeness, the Tribunal accepts J would be affected by his uncle returning to New Zealand, the weight that the Tribunal attaches to that determination is diluted because his own parents fulfil parental roles.
In respect of X, R, L and A, the Tribunal accepts the consistent evidence that Mr Figota has been a loving father to them, and particularly noted the evidence of Mrs XW in this respect. There is ample evidence before me from other family members and friends that, in spite of the Applicant’s recent absence in prison, he has maintained regular and close, even daily, contact with his wife and children. The Direction states, at paragraph 13.4(f) that decision-makers should take into account any known views of affected minor child, giving weight according to the age and maturity of the child. The Tribunal had before it (at GD p 135) an unsigned letter from X, and (at GD p 134) an unsigned letter from R. Both express their strong wishes for their father to be reunited with them. Notwithstanding these letters were not signed, I accept they express the genuine views
I particularly note the letter from a teacher of X in the 2020 school year (Exhibit A2) which noted how upset he has been about the location of his father, and how that culminated in an upsetting breakdown at school.
I accept on the strength of the evidence before me that the best interests of all of Mr Figota’s children are in favour of the revocation of the mandatory cancellation of his visa. During the course of the oral evidence, it was clear that there was a difference of opinion between the Applicant and his wife about the consequences if his visa is not restored. Mr Figota felt it would be too disruptive for the children to be moved to New Zealand, away from their friends, their two sets of grandparents and their extended family, and away from their schooling. Mrs XW, on the other hand, said she nonetheless preferred the family to stay together and felt it would be important for her, as having to cope for the last several years without her husband’s presence, for them to uproot and go to New Zealand with him.
Overall, the Tribunal finds that the best interests of all the minor children affected by the decision, but particularly the four children of the Applicant, are that the mandatory cancellation of the visa be revoked. The weight of this finding is relatively heavy.
Expectations of the Australian community (paragraph 13.3):
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
A superseded version of the Direction (Direction No. 65) contained virtually identical wording to paragraph 13.3 and was considered by the Full Court of the Federal Court of Australia (the Full Court) in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority of the Full Court found that this part of the Direction expresses a ‘norm’.
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 evaluative process.
Charlesworth J stated at [68]-[74]:
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable…
In a separate judgment, Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(1)non-citizens will obey Australian laws when in Australia;
(2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(3)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive…”
His Honour said (at [102]) that ‘…the character assessment, even through the prism of community expectations, may not be decisively against the applicant…’. Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances. On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
It is the Tribunal’s view that the seriousness of Mr Figota’s offending, especially the unprovoked nature of his acts of violence and his willingness to act as an agent for other criminals, would incline the ‘expectation of the community’ weight against him, and that would be tempered only by the fact that most of Mr Figota’s life has been spent living in Australia, which would accord him, in all the circumstances, substantially greater tolerance.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively strongly so.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 14.1):
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.
Mr Figota is a New Zealand citizen. He would be returned to that country in the event that his visa is not restored. Parties responded when directly asked by the Tribunal during the hearing that they considered this consideration was not relevant in the Applicant’s particular circumstances and weighs neutrally. The Tribunal so finds.
Strength, nature and duration of ties (paragraph 14.2):
Decision-makers must have regard to how long the non-citizen has resided in Australia, including whether he arrived as a young child, noting that less weight should be given where the person began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community.
Mr Figota first came to Australia aged two. He spent his formative years in this country and was educated here, apart from a period of between 2003 and 2006 when the family relocated to New Zealand and he attended school there. He has played competitive sport here and worked here in a variety of jobs, including one full-time job.
The Respondent submitted that Mr Figota began offending in 2016 soon after arriving in Australia on the visa in 2014. That is true, but it may be misleading, because the nature of the class of visa is such that a fresh one is issued to a New Zealand citizen each time the person arrives. Accepting that Mr Figota returned for a period to New Zealand and that he started offending when still at school and found himself before the Children’s Court, I think it is fairer to describe this as offending from a young age, rather than soon after arrival.
The second part of this consideration requires the Tribunal to have regard to the strength, duration and nature of any family or social links with Australian citizens and Australian permanent residents. In this respect, New Zealanders holding 444 category visas effectively have the right to reside in Australia without any time limit. The evidence points to the Applicant’s wife, four children, parents and, on the evidence of his mother, all of his siblings, being Australian citizens.
In the papers before the Tribunal were letters of support from Mr Figota’s parents (GD, p 137), an uncle (GD, p 136), an aunt (GD, p 138), his sister J (GD, p 139, who also said she was in a position to offer casual work to the Applicant as she works for a recruitment agency), his sister Ms XS (GD, p 140), his brother-in-law (GD, p 141) and the Pastor of the Assembly of God Church of Samoa at St Albans (GD, p 142). The letters admitted as Exhibits A3 and A4 are also relevant. Each of these letters expressed support for Mr Figota to remain in Australia.
The Tribunal is satisfied that the Applicant has strong family connexions with Australia, as does his wife, and that all the other members of his immediate family live in this country. I find that this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3):
This consideration only generally engaged if the non-citizen is undertaking major work or providing a significant service in Australia and the non-revocation of the cancellation of their visa would compromise that major work or significant service. Mr Figota has some employment record in Australia, but I do not consider it rises to the level contemplated here. I find that this consideration weighs neutrally.
Impact on victims (paragraph 14.4):
This consideration in the Direction allows a decision-maker to take into account the views of victims of a non-citizen’s offending about the restoration of the visa whether (a) those views are known and (b) the non-citizen has been accorded procedural fairness. While there were references to the impact of victims of Mr Figota’s offending in the various sentencing remarks before the Tribunal, there is no evidence that any of these persons were aware of the Applicant’s immigration status.
The Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5):
The Tribunal must consider the extend of any impediments Mr Figota 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 should take account of the non-citizen’s age and state of health, any substantial language or cultural barriers and any social, medical or economic support available to him in New Zealand.
As recorded above in Mr Figota’s oral evidence, he is in good health apart from some problems with his eye. He said that he was awaiting surgery to remove a cataract. Other than that, he told the Tribunal he was in good physical health. There was no evidence before the Tribunal that he suffered from any mental health conditions. The Tribunal notes that Mr Figota has spent some time in New Zealand when he was a teenager and he referred to attending a family reunion there. Accepting that he does not have close contact with relatives there, it is reasonable to surmise that there are some family links. There is a substantial Samoan community resident in New Zealand, and the Tribunal concludes that Mr Figota would be able to identify with his Samoan heritage through members of that community.
As a citizen of New Zealand, Mr Figota would be able to gain access to the same social welfare and health services that are available to other New Zealand citizens, including unemployment payments, if there is a need for such. The Tribunal accepts that there would be some disruption if the Applicant is repatriated to New Zealand, in finding accommodation and work and establishing himself.
The ASFIC submitted that the Applicant would face a lack of support as a result of the Covid-19 pandemic. It is difficult to understand the nature of this submission; Mr Figota, if returned, would face the same quarantine period as any other person entering New Zealand, regardless of whether he is a citizen or not. It is accepted this is a hardship, but it is not an enduring hardship and not one particularised to the Applicant, but to all persons entering New Zealand during the current emergency situation.
Overall, the Tribunal finds that this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
ADDITIONAL SUBMISSION
The ASFIC submitted that the Tribunal must give consideration to any other consideration not specifically listed in the Direction that is ‘legitimate’ and referred to paragraph 14(1) of the Direction. The Tribunal accepts that submission and takes the view that any properly articulated claim that is relevant to a particular non-citizen’s circumstances and to the purpose of the Act may be properly raised and taken into account.
The ASFIC noted that in 1980 Australia ratified the International Covenant on Civil and Political Rights (the ICCPR), and that two articles are relevant, namely Article 12(4) which states that ‘No one shall be arbitrarily deprived of the right to enter his own country’ and Article 17(2) which states ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…’.
The ASFIC cited a Tribunal decision, Re:Clegg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3383 (Clegg) in support of the contention that Australia’s obligations in the ICCPR will be breached where Australia can be described as an Applicant’s ‘own country’ and ‘where any interference with his right to enter Australia…would be arbitrary’.
The ASFIC submitted that Mr Figota has been resident in Australia for ‘27 years of his 29 years of life’ and had close personal ties to Australia though his family, children, church community and friends, and had an ‘absolute lack of familial or other personal ties to New Zealand’. The ASFIC submitted that, if his visa is not restored, Mr Figota would be debarred from re-entering Australia because of the effect of Schedule 5 of the Migration Regulations 1994, r 1.03, Special Return Criteria 5001(c); and that significant hardship would befall the Applicant, his wife and his four minor children if they were to be separated or have to relocate to New Zealand.
Consideration of this submission
I have read the decision in Clegg, as urged on the Tribunal by the Applicant. With respect, I do not agree with the conclusions the learned Member drew. The expression of the phrase ‘own country’ in this matter before the Tribunal must be read in the context of the factual circumstances of the Applicant. Mr Figota is not a citizen of Australia, a fact confirmed by his mother in her oral evidence, and nor did he hold a belief that he was. He has been in Australia for the majority of his life, if not for the period of ‘27 of his 29 years’ as suggested by the ASFIC, but he was born in, and holds citizenship of, New Zealand. He has travelled to New Zealand on some ten occasions, including for a period of three years and five months when he and his family lived in New Zealand (GD, pp 70-71). The Tribunal presumes that Mr Figota has undertaken this travel using a New Zealand passport or New Zealand-issued travel document.

The migration regime which was consolidated in Australia on 2 April 1984 by the Parliament establishes a structure whereby there are, in summary, three categories of persons in Australia. There are lawful non-citizens, which means non-citizens who hold a visa that is in effect (section 13 of the Act). There are unlawful non-citizens (section 14 of the Act) who are, in essence, persons in the migration zone without a valid visa or in detention, having had their visa expire, be cancelled or be refused, or whose visa is no longer in effect because the visa-holder no longer fulfills a mandatory requirement of their visa. The third category of persons are those who hold Australian citizenship, by birth or conferral.
The Tribunal does not accept, as it is being invited to by the Applicant, that there can be some supervening finding that an unlawful non-citizen should have a visa restored on the single basis that Australia is the person’s ‘own country’ within the meaning of that phrase in Article 12(4) of the ICCPR and the effect of the cancellation would be to bar the person from re-entering Australia as the person’s ‘own country’. While this contention was set out in the ASFIC, it was not a contention that Mr Figota made in his evidence, nor that Ms Samuta substantially put on his behalf, aside from reiterating the written submissions. Ms Samuta has made certain submissions that the Applicant has strong links with Australia, and these submissions are properly dealt with under the relevant considerations in Part C of the Direction, to which, by force of section 499 of the Act, the Tribunal must have regard.
I do not accept that, if Mr Figota’s visa is not restored, his being prevented from returning to Australia would be ‘arbitrary’. While his visa was cancelled by force of law owing to his substantial criminal record, and not by the exercise of a discretionary power, the Act provides, at section 501CA(3)(a), that the affected person is notified of the visa cancellation and, importantly, at section 501CA(3)(b), that the Minister must invite the person to make representations about revocation of the cancellation of the visa. Mr Figota accepted the invitation and made representations (for example, see GD, p 94 et seq).
In addition, after the delegate of the Respondent made the decision not to revoke the mandatory cancellation, the Applicant has the right to seek a review by this independent Tribunal of that decision, which he has done (GD, pp 1-7). Further, if the Applicant is dissatisfied with the decision of the Tribunal, he may take further legal steps available to him within this country. Given that these rights are all set out in statute which have provisions relating to affording procedural fairness, I cannot conclude that the consequence of the removal of a person without a visa in terms of their being debarred from re-entering Australia at some future date can be properly categorised as ‘arbitrary’.
The ASFIC refers to the UN Human Rights Committee (‘the Committee’) decision in Nystrom v Australia (UN Doc, 18 August 2011) (Nystrom), however the Tribunal does not consider that decision to be on point. The facts in Nystrom were that Nystrom contended that he had been, until 2003 when he received a letter from the Immigration Department, under an honest (if mistaken) belief throughout his life that he was an Australian citizen. He had been born in Sweden simply because his mother, an Australian permanent resident, was visiting there at the time and owing to complications from her pregnancy, was prevented from flying back to Australia. Nystrom returned to Australia aged 27 days. He had few connexions with Sweden and could not speak Swedish. He had never left Australia since arriving as a baby. He had amassed a very serious criminal record of some 80 offences including, in the words of Emmett J in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 1453 FCR 420, 433, at [49], ‘serious and odious crimes’ He had been granted an Absorbed Person Visa. A significant factor that the Committee said they took into account in their decision was that the decision to deport Nystrom:
…came 14 years after [Nystrom’s] conviction for rape and intentionally causing serious injury and over nine years after his release from prison on those charges, seven years after the armed robbery convictions and a number of years after his release from prison on the latter charges.
The Committee stressed that each case turns on the individual circumstances of the person. I consider that Mr Figota’s situation may be distinguished from that of Nystrom in several respects. Mr Figota knew, and has not contended otherwise, that he was a citizen of New Zealand. He has some, if not close, connexions with New Zealand, and has visited there a number of times, and said he and all his family attended a family reunion there. Apart from being born in New Zealand, Mr Figota lived in that country for several years as a teenager and said he went to school there for a period. The cancellation of his visa occurred in June 2019, some nineteen months after he was convicted for serious offences and while he was still serving a sentence of imprisonment, not many years after release, as for Nystrom. The language generally spoken in New Zealand is English, a language in which the Applicant is fluent.
I reject the submission in the ASFIC that the practical effect of a non-revocation decision in terms of the effect on Mr Figota’s family if he was to be separated from them, or they ‘have to relocate to New Zealand’ is hardship that is relevant to Article 12(4) of the ICCPR. That does not mean that the effect should not be considered. The effect on the Applicant’s minor children is properly considered in a primary consideration in the Direction, and the effect on Mrs XW and other family members of him being separated from them is properly considered under the other consideration in the Direction relating to ties with Australia. As was clear from the evidence of both the Applicant and his wife, any decision about relocating the family to New Zealand if the visa is not restored has not yet been made and will ultimately be for Mr Figota and Mrs XW.
The Committee’s decision relating to Nystrom was respectfully disagreed with by the Australian Government by the lodgement of a formal letter (effectively a démarche) with the Committee, but the Australian Government agreed to change policy to require that any future decision to cancel a person’s visa on account of criminal convictions give greater weight to the length of their residence in Australia. This requirement was subsequently included in directions under section 499, and is reflected paragraph 6.3(5) (and 14.2(1)(a)) of the current Direction. Australia submitted to the Committee that it had not violated any provisions of the ICCPR. I note that the decision of the Committee frequently refers to the Full Federal Court decision but only remarks in passing that that decision was overturned by the High Court of Australia, which held in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, that an alien whose visa has been cancelled on character grounds renders that person an unlawful non-citizen and liable for removal under section 198 of the Act (see the remarks (concurring) of Gummow and Hayne JJ, at [3]).
In addition, although in CPJ16 v Minister for Home Affairs [2020] FCAFC 212 the Full Court of the Federal Court of Australia was considering a ground of appeal relating to whether immigration detention of an applicant was unlawful, the remarks of Jagot and Griffiths JJ (SC Derrington J concurring) are apposite, when Their Honours said at [69]:
As to ground 3 of the notice of appeal, which relies upon the ICCPR in claiming that the appellant’s detention is unlawful, this claim fails to recognise that Australia’s ratification of the ICCPR does not make that instrument part of Australia’s domestic law or a direct source of individual rights and obligations. It is plain that the text of relevant provisions of the Act, in particular ss 189 and 196, are paramount and prevail over Australia’s international obligations in respect of the ICCPR (see for example, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286-287 per Mason CJ and Deane J, and Polites v Commonwealth [1945] HCA 3; 70 CLR 60).
(Emphasis added.)
The ability of the Australian Government to regulate the arrival of non-citizens into Australia and to prohibit the entry of persons who have had their visa cancelled on character grounds from re-entering Australia except in prescribed circumstances, would not seem to me to be displaced by the Committee’s decision in Nystrom, given that the provisions of the ICCPR have not been taken into our domestic law. In any event, the question before the Tribunal is not whether Mr Figota should be debarred from re-entering Australia if his visa is not restored and he is deported, it is whether there is another reason to revoke the mandatory cancellation of the visa. For me to enter into hypotheses about future circumstances is speculation and takes the Tribunal down the path of addressing the wrong question. I find that the UN Human Rights Committee’s decision in Nystrom is not relevant to Mr Figota’s application.
CONCLUSION
The Tribunal has found that two of the primary considerations, the protection of the Australian community and the expectations of that community, weigh heavily against revoking the mandatory cancellation of the visa. The other primary consideration weighs in favour of revocation, and relatively heavily so. However, that weight is factually affected by Mrs XW’s evidence that she intends to take the family to New Zealand if the Applicant is repatriated.
In terms of the other considerations, three have been found not to be engaged in the particular circumstances. The consideration relating to the strength of Mr Figota’s ties to Australia weighs strongly in his favour. The consideration relating to impediments if he is removed to New Zealand weighs in neither direction.
After weighing all the considerations together in the circumstances, the Tribunal finds that the weight of the two primary considerations which weigh against Mr Figota are determinative. His offending has been both violent and serious, and was carried out, most concerningly, as a willing agent of others. One offence involved a blatant home invasion and then menacing of the homeowner and another person. Any risk of the Applicant reoffending, given his violent history, is a real risk and an unacceptable risk. Even in his drug taking, Mr Figota frankly admitted he obtained his illicit supplies by taking them from others by force. It may be that he has learned a lot about himself in prison, and it is hoped that he will use the knowledge he has gained from the courses he has undertaken, and the counselling he has received from Dr Bird, to take a real grip on himself. It appears that he has the strong support of a wife and four young children and that he is a young man with a potentially productive future ahead of him.
I am very mindful that the loss of his visa means inevitable repatriation to New Zealand, and that this will have a detrimental effect on his siblings and his parents and other extended family. However, I am satisfied on this occasion that the discretion in section 501CA(4)(b)(ii) is not enlivened. The decision under review was therefore the correct decision.
DECISION
The Tribunal, under section 43(1)(a) of the AAT Act, affirms the decision under review.

I certify that the preceding 182 (one hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 7 April 2021

Dates of hearing: 26 & 29 March 2021

Counsel for the Applicant: Ms Jennifer Samuta

Solicitors for the Applicant: Samuta McComber Lawyers

Advocate for the Respondent: Ms Olivia Hicks

Solicitors for the Respondent: The Australian Government Solicitor

Dates of hearing:	26 & 29 March 2021
Counsel for the Applicant:	Ms Jennifer Samuta
Solicitors for the Applicant:	Samuta McComber Lawyers
Advocate for the Respondent:	Ms Olivia Hicks
Solicitors for the Respondent:	The Australian Government Solicitor