Fotu and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 45
•18 December 2024
Fotu and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 45 (18 December 2024)
Applicant/s: Caleb Haumono Fotu
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7836
Tribunal:Deputy President Thompson SC
Place:Perth
Date:18 December 2024
Decision:The decision of a delegate of the Minister dated 23 September 2024 not to revoke the cancellation of the Applicant’s Special Category (Temporary) (Class TY) (subclass 444) is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).
..............................[SGD]................................
Deputy President
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – Applicant is a 23-year-old year old citizen of New Zealand – Non-Revocation Decision is set aside
LEGISLATION
Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 478, 499(1), 499(2A), 500(1)(b), 500(6B), 501(3), 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(3)(b), 501CA(4), 501CA(4)(b), 501CA(4)(b)(i)-(ii), 501E, 501F, 501G(1), 501G(1)(f)(ii), 503
Migration Regulations 1994 (Cth) – regulation 2.55
Administrative Appeals Tribunal Act 1975 (Cth) – section 29(7)
Administrative Review Tribunal Act 2024 (Cth) – sections 19, 97, 52
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16 Part 5 section 24
CASES
Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477
BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44
BMY18 v Minister for Home Affairs and Anor [2019] FCAFC 189; 271 FCR 517
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338
DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492
FYBR v Minister for Home Affairs [2019] FCAFC 185
Grice and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2436
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hong Ye v Minister for Immigration [1998] FCA 341; (1998) 82 FCR 468
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685
PHMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) FCR 299; [2019] FCA 1776
Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273
Snowden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4504
Stewart v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
WAFE of 2002 v Minister for Immigration [2002] FCAFC 254
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.2, 5.1(2)-(4), 7, 7.2, 8, 8(1), 8.1(1), 8.1.1(1)(a)-(b), 8.1.2(2)(a)-(b), 8.3, 8.4, 8.4(4), 8.5, 8.5(2), 9, 9.1, 9.1.2(2), 9.2, 9.2(1)(a)-(c)
Statement of Reasons
THE APPLICATION
Mr Caleb Fotu has sought review of a decision of a delegate of the respondent (Minister) dated 23 September 2024, not to revoke the cancellation of his Special Category (Temporary) (Class TY) (subclass 444) visa under section 501CA(4) of the Migration Act 1958 (Act).[1]
[1] Exhibit R1, G3, 7.
BACKGROUND
Mr Caleb Fotu is a 23-year-old male citizen of New Zealand[2] who first arrived in Australia on 22 December 2005, at the age of four and a half. He went to Tonga with his family for a few years in 2006, and has been living continuously in Australia since December 2008.[3] He has not departed Australia since returning from a family trip to Tonga on 21 January 2016.[4]
[2] ASFIC [7].
[3] Exhibit R1, G26, 116; ASFIC [7].
[4] Exhibit R1, G26, 116.
On 23 November 2023, on his plea of guilty, Mr Fotu was convicted in the District Court of Western Australia of:
(a)aggravated home burglary and commit, for which he was sentenced to 2 years’ imprisonment and made eligible for parole; and
(b)armed robbery. No penalty was imposed for this conviction.[5]
[5] Exhibit R1, G4.
On 28 February 2024 the Minister cancelled Mr Fotu’s visa under section 501(3A) of the Act. The basis of the cancellation was that Mr Fotu had a substantial criminal record within the meaning of section 501(6)(a), and was 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 territory (Cancellation Decision).[6] Mr Fotu was notified of the Cancellation Decision by letter of the same date, which was hand delivered to him at Acacia Prison,[7] and he signed for receipt of it on the same date.[8]
[6] Exhibit R1, G7.
[7] Exhibit R1, G7, 66.
[8] Exhibit R1, G7, 73.
On 23 March 2024 Mr Fotu made representations to the Minister requesting revocation of the Cancellation Decision under section 501CA of the Act.[9]
[9] Exhibit R1, G8.
On 23 September 2024 pursuant to section 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision.[10] Mr Fotu was notified of the delegate’s decision by hand at Karnet Prison Farm on 25 September 2024 (Non-Revocation Decision).[11]
[10] Exhibit R1, G3, 9.
[11] Exhibit R2, SG2, 29.
Mr Fotu sent his application for review of the Non-Revocation Decision by post to the Administrative Appeals Tribunal (AAT) on 1 October 2024.[12] On 7 October 2024 the Tribunal received the application for review of the Non-Revocation Decision.[13] As a result of this latter event, the Minister says the Tribunal has no jurisdiction to hear the matter as the application was received out of time.
[12] Exhibit R3, TB5, 178.
[13] Exhibit R1, G2.
On 14 October 2024 the Administrative Review Tribunal (ART) replaced the AAT and all matters which were before the AAT were transferred to the ART.[14] References to the Tribunal in this decision refer to the AAT prior to 14 October 2024, and the ART from that date.
[14] Schedule 16 Part 5 section 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth).
THE HEARING AND THE EVIDENCE
The hearing took place in person in Perth on 26 and 27 November 2024. Both parties were legally represented. One of the witnesses was assisted by an interpreter.
The following documents were marked as exhibits:
(a)Exhibit A1 – Applicant’s bundle of evidence, dated 14 November 2024;
(b)Exhibit A2 - Applicant’s supplementary bundle of evidence, dated 21 November 2024;
(c)Exhibit R1 – Section 501G documents, filed 21 October 2024;
(d)Exhibit R2 – Supplementary section 501G documents, filed 30 October 2024; and
(e)Exhibit R3 – Respondent’s Tender bundle, filed 21 November 2024.
Caleb Fotu and four other members of his family gave evidence, all were cross-examined. Given that all but one of the witnesses had the same surname, I will generally refer to them by their given names throughout these reasons, unless the context makes it plain which member of the family I am referring to. I intend no disrespect towards them by doing so. In addition to their oral evidence, their evidence comprised:
(a)Pastor Joshua Fotu, the father of Caleb, statements dated 20 March 2024, 4 November 2024, and 21 November 2024;[15]
(b)Malaselina Tahavalu, an older cousin of Caleb, statements dated 12 November 2024, and 13 November 2024;[16]
(c)Chiara Fotu, the older sister of Caleb, statements dated 18 March 2024, and 13 November 2024;[17] and
(d)Michael Fotu, the older brother of Caleb, statements dated 19 March 2024, 6 November 2024, and 13 November 2024.[18]
[15] Exhibit R1, G11, 95; Exhibit A1, 45–46; Exhibit A2, 1.
[16] Exhibit A1, 92–93; Exhibit A1, 78–81.
[17] Exhibit R1, 96; Exhibit A1, 94.
[18] Exhibit R1, G13, 97; Exhibit A1, 67–68; Exhibit A1, 95.
Caleb made three statements in support of revocation, dated 23 March 2024,[19] 13 November 2024,[20] and 21 November 2024.[21]
[19] Exhibit R1, G8.
[20] Exhibit A1, 10-22.
[21] Exhibit A2, 2.
Mr Fotu also relied on:
(a)a Statement of Facts, Issues and Contentions, dated 14 November 2024 (ASFIC);
(b)a Statement of Facts, Issues and Contentions on Jurisdiction, dated 11 November 2024 (AJSFIC); and
(c)Contentions in Reply on Jurisdiction, dated 20 November 2024 (Applicant’s Reply).
The Minister relied on:
(a)a Statement of Facts, Issues and Contentions undated but filed 21 November 2024 (RSFIC);[22] and
(b)A Statement of Facts, Issues and Contentions on Jurisdiction dated 19 November 2024 (RJSFIC).
[22] An earlier SFIC dated 28 October 2024 was filed by the Minister but I was informed that this was not relied on.
My assessment of the evidence of the family as a whole is that they were truthful, genuine and caring people, all of whom were deeply shocked by Caleb’s offending, and committed to doing all they could to assist him in the future. I will consider their more fully evidence in the course of these reasons.
LEGISLATIVE FRAMEWORK
Migration Act
Under sections 501(3) and (3A) of the Act, the Minister must cancel a person’s visa if he or she is satisfied that the person does not pass the ‘character test’, and the visa-holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is set out on section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
Once a person’s visa is cancelled under section 501(3A) of the Act, the Minister must give a person written notice inviting them to make representations about revocation of the original decision. If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that:[23]
(a)the person passes the character test; or
(b)there is another reason why the original decision should be revoked.
[23] Section 501CA(4)(b) of the Act.
That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason why the original decision should be revoked.[24]
[24] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.
Direction no. 110
On 7 June 2024, the Minister issued Direction no. 110 under section 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
Paragraph 5.2 of Direction 110 sets out mandatory principles which ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’.
These principles include the following:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
Paragraph 8 of Direction 110 sets out the primary considerations which must be taken into account in making a decision under section 501CA(4). These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged in by an applicant (if any);
(c)the strength, nature and duration of an applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
Paragraph 9 of Direction 110 sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:
(a)the legal consequences of the decision;
(b)the extent of impediments if removed; and
(c)the impact on Australian business interests.
Paragraph 7 of Direction 110 provides:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES
Mr Fotu, by his counsel, concedes that he does not pass the character test in sections 501(6)(a) and 501(7)(c) of the Act.[25] Therefore, the remaining issues for consideration are:
(a)whether the Tribunal has jurisdiction; and
(b)if I find the Tribunal does have jurisdiction, whether there is another reason why the Cancellation Decision should be revoked. [26]
[25] ASFIC [15].
[26] Section 501CA(4) of the Act.
DOES THE TRIBUNAL HAVE JURISDICTION?
Mr Fotu was notified of the Non-Revocation Decision by hand[27] on 25 September 2024 whilst incarcerated at Karnet Prison. He signed for receipt of the notification package on the same date.[28]
[27] Regulation 2.55 of the Migration Regulations 1994 permits service by hand delivery if a person is not in immigration detention.
[28] Exhibit R1, G28.
Mr Fotu attempted to apply for a review on 26 September 2024, however, that application was sent by email by a prison staff member to the National Character Consideration Centre, in error.[29] Karnet Prison received an email from the National Character Consideration Centre on 1 October 2024, advising that the application had been sent to the incorrect address. Mr Fotu’s application for review was then placed by him in the mailbox at Karnet Prison on 1 October 2024,[30] from which it was sent to Serpentine Post Office that evening and transmitted within the mail system operated by Australia Post. It was received by the Tribunal in the morning mail at about 9 am on Monday 7 October 2024.[31]
[29] Exhibit R2, SG3.
[30] Exhibit R3, 178.
[31] Exhibit R1, G2.
The right to apply to the Tribunal for review of a decision of a delegate of the Minister is set out in section 500(1)(b) of the Act. The application must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision.[32]
[32] Section 500(6B).
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), which generally allowed the Tribunal to extend the period within which to apply for a review, did not apply to applications for review of decisions made under section 501CA(4) of the Act.[33] Section 19 of the Administrative Review Tribunal Act 2024 (ART Act) permits extensions of time in the ART, but does not apply to applications for review of decisions under section 501CA(4) of the Act.[34] Consequently, I have no power to extend time if an application is made out of time.
[33] See section 500(6B) of the Act.
[34] Section 500(6B) of the Act.
The Minister says that the 9th day was Friday 4 October 2024 so that receipt by the Tribunal of Mr Fotu’s application in the morning mail on Monday 7 October 2024 was out of time. The result of this, in the Minister’s submission, is that the Tribunal has no jurisdiction to hear the matter, and it must be dismissed pursuant to section 97 of the ART Act.
Mr Fotu makes two arguments against the Minister’s submission that I have no jurisdiction, being:
(a)that he was not validly notified of the Cancellation Decision in accordance with the requirements of section 501G(1)(f)(ii) of the Act; [35] and
(b)the application was lodged within the meaning of section 500(6B) of the Act, when it was placed in the prison mailbox at Karnet Prison.
[35] AJSFIC [27].
As to the possible outcomes, at the hearing the parties accepted:
(a)if I find the notification is defective, time has not commenced to run so that the jurisdiction issue falls away, and I may proceed to review the merits of Mr Fotu’s application;[36] and
(b)if I find there is no jurisdiction, I must dismiss the application for review under section 97 of the ART Act, and not proceed to consider the merits of Mr Fotu’s application.[37]
[36] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338.
[37] PHMK v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) FCR 299; [2019] FCA 1776.
The Act
Section 500(6B) of the Act read, at the relevant time:
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
Emphasis added
Section 501G(1) of the Act read, at the relevant time:
If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; or
(ba) not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non‑disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such additional information (if any) as is prescribed.
Emphasis added
Notification
Mr Fotu’s submissions on notification largely concerned the question of whether the requirements of the Act were met, and in that context whether an applicant is able to identify when an application is taken to be made.[38] In summary:
(a)section 501G(1)(f)(ii) requires the notification to state the time in which the application must be made;
(b)“state” requires that the notification must set out the information in a manner that is complete and clear,[39] which means crystallising the period either expressly or by reference to correct objective facts from which the period can be ascertained;[40]
(c)relevantly, this means the notification must allow an applicant to determine when an application for review is taken to have been made with respect to the 9-day deadline;
(d)the use of the phrases “given to” in the letter and “to apply” in the information sheet, do not provide sufficient clarity; and
(e)nothing in the letter allows Mr Fotu to understand when an application is taken to have been made or “lodged” within the meaning of section 500(6B).
[38] Applicant’s Reply [7].
[39] AJSFIC [28]; DFQ17 v Minister for Immigration and Border Protection and Anor [2019] FCAFC 64; 270 FCR 492 [58]; BMY18 v Minister for Home Affairs and Anor [2019] FCAFC 189; 271 FCR 517 [30]-[37].
[40] AJSFIC [29].
The Minister’s submissions on the point did not directly engage with this argument. Rather, the Minister pointed to what was required to be included in paragraphs (i) to (iv) of section 501G(1)(f). The submissions correctly state that all of the elements required by those sub-paragraphs are included in the letter and the information sheet. However, Mr Fotu’s point, which was that the information must be provided in a manner that is not misleading, was not directly engaged with.
The portion of the letter which is in issue is the following passage:[41]
The Department cannot consider the cancellation of your visa any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of the decision must be given to the AAT within nine (9) calendar days after the day on which you are taken to have received this letter. The AAT has no power to extend this timeframe.
Bolding in original, underlining added
[41] Exhibit R1, G3,
Ultimately the Minister’s argument on notification was twofold. First, if the notification contains all the prescribed information it is not misleading, and secondly, the phrase “given to” in the letter means “received by” or “in the possession of”, because of the requirements of section 501G(1)(f). I reject this argument.
As to the first proposition, the mere fact that the prescribed information is contained in the notification does not mean that the notification is not misleading. That is clear from DFQ17 v Minister for Immigration and Border Protection.[42]
[42] [2019] FCAFC 64; 270 FCR 492 [58].
As to the second proposition the true meaning of the phrase “given to” in the context of a letter handed to a person in prison does not, in my view, mean the receipt of an application by the Tribunal. As the High Court explained in EFX17 v Minister for Immigration and Border Protection[43], the verb “give” means the performance of an act, not the consequences of that performance.[44] In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44 as Jagot and Beech-Jones JJ explained at [92], once the act of giving has taken place something else may operate to vitiate its validity thereby rendering the relevant act of being ineffective as a matter of law.
[43] [2021] HCA 9; 271 CLR 112 [23].
[44] See too [56]-[57], [91]-[92].
What the example from BIF23 serves to illustrate is the importance in this case of the language adopted in the letter to Mr Fotu. By informing Mr Fotu that he was required to have given the application for review within 9 days, the letter was misleading. As I find below, the law requires that Mr Fotu’s application had to be received by the Tribunal within 9 days after he was notified of the Non-Revocation Decision. By using the phrase “given to” rather than “received by”[45] the letter used an antonym of the actual legal obligation, and was thereby misleading.
[45] Or any number of other appropriate phrases denoting receipt by the Tribunal.
As a result, the Tribunal has jurisdiction to determine Mr Fotu’s application. As was explained by Bowen CJ in Brian Lawlor:
an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
In this case, a decision had been made, but the failure of the notification to make it clear what was required to be done to meet the obligation to have lodged an application for review, is a failure on the part of the Minister which means that whilst a decision was made, time has not yet started to run.
Section 500(6B)
As I note above, it is my view that the issue raised by the construction of section 500(6B) of the Act must be determined against Mr Fotu. There are two lines of authority which are relevant. The first is a line of cases arising under the former section 478 of the Act where “lodged” was held to require that the application had to have come into the possession of the Registry,[46] the second is the construction of the word “made” in sections 501CA(3)(b) and 501CA(4)(a) of the Act in Stewart v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs.[47] Stewart was subsequently considered in the AAT in respect to a similar argument as the one made in this matter, and rejected.[48]
[46] Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 at [24]; Hong Ye v Minister for Immigration [1998] FCA 341; (1998) 82 FCR 468; WAFE of 2002 v Minister for Immigration [2002] FCAFC 254.
[47] [2020] FCAFC 196.
[48] Grice and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2436.
Given the preponderance of authority which binds me, I must find that section 500(6B) requires the application to be physically in the possession of the Tribunal in order for it to have been lodged within the meaning of the Act. However, given what I have found regarding notification, I need not consider the issue further.
THE APPLICANT’S CONDUCT AND OFFENDING
On 23 November 2023 Mr Fotu was sentenced following an early plea of guilty, of aggravated home burglary and armed robbery, and received an overall sentence of two years in prison.[49] He was released on parole into immigration detention in early November 2024. The offences were committed on 18 February 2022 in company with a group of other young men, some of whom were friends of his.
[49] Exhibit R1, G4, 28.
DOES THE APPLICANT PASS THE CHARACTER TEST?
In this case, Mr Fotu fails the character test in section 501(6) of the Act because his convictions and the sentence imposed for them means he falls within the meaning of section 501(7), having been sentenced to a term of imprisonment of 12 months or more. That concession is properly made as his failure to pass the character test arises as a matter of law.[50] I find that he has failed the character test.
[50] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The power to revoke the Cancellation Decision will only be enlivened if there is ‘another reason’, within the meaning of section 501CA(4)(b)(ii) of the Act, why it should be revoked. The bulk of the evidence and submissions at the hearing were directed at this issue.
The parties’ submissions
Mr Fotu’s submissions contend there are five reasons which should lead me to the conclusion that there is another reason within the meaning of section 501CA(4)(b)(ii) of the Act. These are:[51]
(a)his low risk of reoffending;
(b)his demonstrated commitment to ongoing rehabilitation;
(c)his family in Australia and the impact on these family members if he was to be removed, and in particular the impact on Australian minor children;
(d)the length of time he has resided here and his substantial ties to Australia; and
(e)the impediments he would face in New Zealand.
[51] ASIFC [18].
The matters raised in (a) and (b) fall within both the first and fifth primary considerations in Direction 110, being protection of the community and the expectations of the community. The matters raised in (c) and (d) fall within the third and fourth primary considerations of strength nature and ties to Australia and the best interests of minor children. The impediments Mr Fotu would face if returned to New Zealand fall within one of the other considerations I may look at if relevant.
I will set out the Minister’s submissions on the various considerations as I deal with them. Broadly speaking, the Minister contends that the Cancellation Decision should not be revoked.
Neither party suggests the primary consideration of family violence is relevant and I do not consider it.
Protection of the Australian Community
Direction 110 at [8.1(1)] requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[52]
[52] See also Direction 110 at [8.1(1)].
Criminal history and other conduct
Mr Fotu’s only criminal history is set out in paragraph 48 above.[53]
[53] See also Exhibit R1, G4.
The sentencing remarks, which I include so that the context of the offending is properly understood, says the following:[54]
You all walked up the driveway and into the rear garden and smashed a rear glass sliding door to get in . . .[The victim], who’d been in the shower, heard glass shatter and came out to check the noise, and then she realised there were people inside the house. She ran towards her bedroom, but she was followed by the group and one of the group held a hammer above his head as he approached her.
She fell backwards onto a bed frame, which caused her top to fall down. . . . She was . . . terrified that she was going to be raped. Her statement tells me that when her top fell down, there were four men in the room with her, all she could think was that she was hoping they didn’t rape her and that they would just take what they wanted without hurting her.
. . . Four of the group were in the bedroom with her and stood over her, demanding that she hand over money and jewellery. One of the group told her to remove the rings on her hands and hand them over. She tried to explain they belonged to a grandmother and they weren’t worth much, but one of the group raised an axe above his head and said:
Give them to me or I’ll hurt you.
She says . . she was terrified for her life. The group of you stole a number of items, including an Xbox, a Nintendo console, Nike shoes and jewellery, and a safe containing about $6,000, and then you all left and got back in the Commodore and . . . drove off.
[54] Exhibit R1, G5, 32.
In his oral evidence, Mr Fotu said that he was personally armed with a hammer.
Nature and seriousness of the conduct
I must consider the nature and seriousness of Mr Fotu’s offending and other conduct.[55] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[56] and that certain criminal or other conduct is considered serious.[57] Furthermore, the scope of what I may consider as either very serious or serious, is not limited to those matters specifically included in Direction 110.[58]
[55] Direction 110 [8.1(1)].
[56] Direction 110 [8.1.1(1)(a)].
[57] Direction 110 [8.1.1(1)(b)].
[58] Direction 110 [8.1.1(1)(a)-(b)].
Mr Fotu concedes that this consideration will weigh against revocation. The written submissions made on behalf of Mr Fotu say:[59]
The Applicant accepts that, despite the fact that he did not directly physically harm the victim during the offending and was not convicted of an assault against the victim, he was involved in an act that was inherently aggressive and directed towards a woman who was in a very vulnerable position. The Applicant accepts that his offending was very serious and that this is reflected in the term of imprisonment imposed, in the sentencing remarks of Judge Sweeney, and in the harm caused to the victim as summarised in those remarks and expressly acknowledged by the Applicant.
However, there are no other factors that exacerbate the seriousness of the offending. This is the Applicant’s only conviction, and his conduct following his being convicted of the offending is impeccable. As a result, there is no pattern of offending or any trend of increasing seriousness. The Applicant has received no previous warning from the Department.
Whilst the Court found that the nature of the offending was a very serious example of a home-invasion type burglary,[60] and found it necessary to impose an immediate term of imprisonment despite the significant mitigating factors, the sentencing Judge acknowledged that the term of imprisonment may ultimately seem light against the seriousness of the offending. The willingness of the Court to find that the mitigating circumstances demanded a lighter sentence than the seriousness of the offending would usually require should be followed by the Tribunal. Further the Judge confirmed that the principle of general deterrence was a factor in the sentencing and this factor cannot be taken into account by the Tribunal.
[59] ASFIC [29]–[31].
[60] Exhibit R1, G5, 39.
In oral closing, based on Mr Fotu’s oral evidence including his cross-examination, it was submitted that Mr Fotu accepted that his offending was wrong, that he didn’t shy away from or minimise his conduct, and he was disgusted with his conduct, including his lies to police when interviewed on two occasions. I accept this submission.
I was invited to find that Mr Fotu was outside the victim’s bedroom during that part of the offending,[61] and the submissions note that as no finding was made as to who played which part.[62] As the rules of evidence do not apply in the Tribunal,[63] it is open to me to accept Caleb Fotu’s evidence to that effect. The Minister contends that I should not make a finding as the other co-offenders were not available to give evidence before me. The sentencing Judge was not in a position to, and was not required to, given a statement of facts and pleas of guilty made findings about the parts played by the various members of the group of offenders unnecessary. During the hearing before me the Minister did not cross-examine Mr Fotu about this aspect of his evidence, despite detailed cross-examination regarding the offending during which he gave frank admissions of his role and his knowledge that his conduct was wrong. I am therefore satisfied on the evidence before me that Mr Fotu was more likely than not the person who was outside the victim’s bedroom when she was subject to the most personally traumatising aspects of the offending.
[61] Exhibit A1, 10 [7].
[62] ASFIC [35]-[37].
[63] Section 52 of the ART Act.
The Minister’s oral submissions were to the effect that this consideration weighed strongly against revocation.
In my view, having regard to the evidence, and the assessment of the offending by the sentencing Judge, I have concluded the offending was serious and weighs strongly against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I must also consider the risk to the Australian community should Mr Fotu commit further offences.[64] This requires an assessment of the nature of the harm should Mr Fotu engage in further criminal or other serious conduct,[65] and an assessment of the likelihood of Mr Fotu engaging in that type of conduct.[66] There is no statutory constraint on the way I am to assess that risk, other than the requirement for me to adopt a rational and probative approach to the assessment.[67]
[64] Direction 110 [8.1.2].
[65] Direction 110 [8.1.2(2)(a)].
[66] Direction 110 [8.1.2(2)(b)].
[67] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 [41].
Nature of the harm
To determine the risk to the Australian community if Mr Fotu committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should he reoffend.[68]
[68] Direction 110 [8.1.2(2)(a)].
The Minister contends that if Mr Fotu were to reoffend, the nature of the harm ‘would include serious physical, psychological and financial harm to a member of the Australia community.’ The Minister goes on to say ‘Mr Fotu’s offending is very serious and any likelihood that it may be repeated is unacceptable.’[69]
[69] RSFIC [5] (emphasis added).
I have found above that the offending is serious, and I reject the submission that it is very serious. I also reject the submission that reoffending would lead to certain types of harm. I accept that if Mr Fotu were to engage in similar offending he may cause the type of harm he caused in this instance, that is, property damage, psychological harm to the victim, and some financial harm.
I consider the nature of the harm which may be caused if Mr Fotu reoffends in a similar manner to his past offending, to be serious.
Likelihood of engaging in further criminal or serious conduct
To determine the risk to the Australian community if Mr Fotu committed further offences or engaged in other serious conduct, I must also consider the likelihood of him reoffending if he is permitted to remain in the Australian community.[70]
[70] Direction 110 [8.1.2(2)(b)].
The evidence relevant to his likelihood of reoffending is the following:
(a)At the time of the offence Mr Fotu was aged 20 years and eight months of age,[71] at the time of his sentencing he was aged 22 years and five months, at the time of the hearing before me he was aged 23 years and six months. He is therefore 34 months older now than he was at the time of the offending, a not insubstantial period of time in the life of a young person.[72]
[71] Exhibit R1, G3, 6.
[72] It is well recorded in the psychological literature that emerging adults, aged 18 – 25 or thereabouts, are not fully matured humans with fully developed reasoning skills. The maturing of young people comes along with attendant life experiences and the opportunity to learn from these experiences, see Rudling, E., Shelley, B., Chuah S H., Hoffman n R. Lang, M (2023) Emergent Adulthood Review of Literature. Hobart: Tasmanian Behavioural Lab, University of Tasmania, 8-12. This was reflected in the Judge’s sentencing remarks when she said at Exhibit R1, G5 page 50 ‘it’s understood young men act without properly thinking through the consequences. And its to be hoped that, as they get older, maturity kicks in and they become less likely to offend’.
(b)At the time of the offending there was evidence he had impaired intellectual functioning.[73]
[73] Exhibit R1, G5,48; Exhibit R1, G5, 51.
(c)About a week after the offending he was offered the opportunity to join the group in another offence and he chose not to participate.
(d)Prior to his sentencing he undertook a course of cognitive behavioural therapy with a psychologist,[74] and he told me he attended nine sessions in all.
[74] Exhibit A1, 1–3.
(e)Whilst in prison he completed a 4 week program called the Men’s Circle Support Group which dealt with topics including consequential thinking, emotional awareness, and assertive communication.[75] His evidence of what he learnt from this experience, which was not the subject of cross-examination, demonstrates considerable maturity of thought.[76]
[75] Exhibit A1, 4.
[76] Exhibit A1, 15 [31].
(f)Caleb has been able to demonstrate considerable maturity in the manner he has dealt with various challenges he faced whilst in prison, none of which were the subject of cross-examination.[77]
[77] Exhibit A1, 15 [32]-[35].
(g)He also attended the Reset Drug and Alcohol Intervention Program whilst in prison, despite there being no indication that either drugs or alcohol were a part of his life.[78]
(h)He also completed the 30 hour Plan for Personal Management program whilst in prison, which was aimed at building emotional intelligence.[79]
(i)The evidence from his cross-examination is that none of the other offenders in the group remain a part of his social circle, and his only contact with them since the offending has been in respect to court appearances and when unavoidable in prison, including when the prison authorities placed him in the same cell as one of the others in the group.
(j)During his incarceration Caleb worked in various roles, including most recently in the Abattoir at Karnet Prison Farm as a slaughter man. He describes that work as ‘At first . . . scary but it has been a good learning experience to know where food comes from’, which of itself demonstrates a level of maturity it is unlikely he had at the time of the offending. Notably his supervisor in the Abattoir advised ‘he works well arriving at work on time with an enthusiastic attitude’.[80]
(k)Throughout his imprisonment Caleb was noted as being ‘polite and respectful towards staff and responds well to authority and instruction’.[81] In May 2024 he was assessed as minimum security and shortly thereafter transferred to Karnet Prison Farm.[82]
(l)Caleb undertook a Risk of Re-offending assessment and scored 5 on what I understand to be a scale of 1 – 22, which led to him being rated as not needing any criminogenic programs.[83]
(m)Pastor Fotu explained to me that his son has changed since his offending and now speaks to him more and listens to his father’s advice, and that he has learnt as a father that he wasn’t giving his son enough support. It is clear that Pastor Fotu seeks to assist his son in his own work in the Church, and has committed to putting his resources into helping his son and other young people make good decisions.[84]
(n)Caleb’s brother Michael told me that Caleb has matured since being in prison, that he has admitted and accepted his wrongdoing, and has grown from it.
(o)Caleb’s cousin Ms Tahavalu told me that in her experience Caleb is more mature now than he was at the time of his offending, he has expressed regret and remorse to her, he has told he wishes he could go back in time and undo what he did, that he now has the ability to offer reflective advice to her which he did not have before, and that he has grown spiritually and has developed a personal faith relationship with God.
(p)The Parole Board considered in October 2024 that Caleb ‘does not pose an unacceptable risk to the safety of the community’ and imposed a range of conditions on his parole, all of which Caleb has accepted as being appropriate.
[78] Exhibit A1, 5.
[79] Exhibit A1, 6.
[80] Exhibit R3, TB2, 145.
[81] Exhibit R3, TB2, 133.
[82] Exhibit R3, TB2, 145.
[83] Exhibit R3, TB2, 145.
[84] Exhibit A2, 1.
Mr Fotu’s submissions contend that all available evidence is consistent with a very low likelihood of engaging in further criminal or other serious conduct. His conduct following his involvement with the offending is overwhelmingly consistent with a low risk to the Australian community, that he has demonstrated genuine and ongoing remorse, that he has undertaken rehabilitation, and is genuinely committed to ongoing rehabilitation.[85]
[85] ASFIC [46].
In his written submissions, the Minister accepts that Mr Fotu has undertaken various courses and counselling, and that he has no prior criminal record. However, the Minister contends that I should not consider the evidence of the family members as to his increased maturity, in the absence of any independent formal risk assessment, and that there is a risk of reoffending.[86] The Minister’s oral submissions directed at this point were very limited and did not address the multiple evidentiary matters set out at paragraph 71 above. Despite clear evidence of the increased maturity of Caleb, both chronologically and in terms of his decision-making and his interactions with other people and situations of danger, the Minister persisted with the submission that ‘until Mr Fotu is mature, he may always be a person who’s likely to go along with his friends’.[87]
[86] RSFIC, 7–8.
[87] RSFIC, 8.
I do not accept the Minister’s submissions which fail to consider the evidence of Mr Fotu’s behaviour and efforts to rehabilitate himself over the nearly 3 years since he committed the offences. In my view, the likelihood of him engaging in further criminal or serious conduct is low.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of his conduct, and the risk to the Australian community should he commit further offences or engage in other similar conduct, I have concluded that that this consideration weighs slightly against revocation.
The strength, nature and duration of ties to Australia
In accordance with paragraph 8.3 of Direction 110, I must also consider the strength, nature and duration of Mr Fotu’s ties to Australia.
The Minister accepts this consideration weights strongly in favour of revocation. That is a concession well made in the circumstances of this matter and I accept the Minister’s submission.
The evidence which is concerned with Mr Fotu’s ties to Australia comprises;
(a)the evidence of his family members as set out in paragraph 11 above;
(b)a bundle of statements in Exhibit A1, comprising statutory declarations from twelve witnesses in addition to his family members who gave evidence at the hearing;
(c)a bundle of statements in Exhibit R1 provided to the Minister’s delegate in April 2024 and included as documents G10 to G24 at pages 94 to 114;
(d)Mr Fotu’s movement records at G26 of Exhibit R1, which, along with his oral evidence, show that other than visits to Tonga to see family members residing there, he has been living in Australia since December 2008; and
(e)the prison visit records at pages 154 to 160 of Exhibit R3.
This evidence paints the picture of a young man in a large and loving family and community, who contributes by playing rugby, being involved in the Church, assisting his siblings and cousin with their young children, and being employed. The sentencing Judge described him as ‘A good role model to children. A helpful person with a good work ethic and a good heart’.[88] Her Honour had no difficulty accepting the tenor of the references which were before her, that the offending was out of character, and neither do I.
[88] Exhibit R1, G5, 58.
I conclude that the strength, nature and duration of Mr Fotu’s ties to Australia weighs heavily in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
I must also consider the best interests of the minor children in Australia affected by the decision.
Mr Fotu accepts that he does not have any of his own children, however he has minor nephews and nieces who are all Australian citizens, a step-nephew and step-niece who are both Australian citizens, and several minor cousins and second cousins living in Australia.[89] He is very close with his siblings and as a result, he was entrusted with looking after his siblings’ children. Prior to his incarceration, his siblings relied heavily on him as he is the only child in the family who does not have a partner or children of his own to look after. This meant he had time and the capacity to help out their families, especially when his siblings were busy working. Mr Fotu provided practical, financial, and emotional support towards both his siblings and their children. The submissions contend that this consideration weighs heavily in favour of revocation.
[89] ASFIC [80].
The Minister accepts that it is in the best interests of the children for Mr Fotu to remain in Australia, but contends that any weight afforded to this consideration should be reduced because the children’s parents fulfill the parental role, Mr Fotu has been separated from the children since his incarceration on 7 November 2023, and there is nothing to suggest that the relationship would not be adequately maintained via electronic means.[90]
[90] RSFIC, 9 [8]-[9].
The picture of his role and relationship with the children is less clear-cut than the Minister’s submissions suggest.
I note that Caleb’s sister Chiara, who resides in the same house as her parents and Caleb, has separated from the father of her children, who live with her in that same household. Caleb has assisted with caring for the children when Chiara has been at work, and was a regular babysitter for her. The children’s relationship has been maintained by visiting him twice in prison, and by regular telephone contact. Given the children are aged 5 and 3, it is hardly surprising that Chiara would not take them to a prison visit more regularly, and I classify her decision as good parenting. Whilst Caleb is not a parent, he is a closer uncle than many, sharing a home with the children and having a day to day hands-on role in their care.
His cousin, Ms Tahavalu, who was brought up in the same household as Caleb, and is more like a sister than a cousin, is married and has three children aged 6, 5 and 1. The youngest has, unsurprisingly, not met Caleb. The 5 year old is Caleb’s godson and was described as being very close to Caleb. Ms Tahavalu said Caleb was a big part of her and her children’s support system. This is particularly so as her husband works FIFO, so is not always available when Ms Tahavalu requires assistance or support. Her sons have not visited Caleb in prison, a decision which I also regard as good parenting, however they have kept in touch by telephone. Again, his relationship is not a parental one, but he is a closer uncle than many.
Caleb’s brother Michael has three children, a son named for Caleb and a stepdaughter and stepson aged 9 and 12. None of his children have visited Caleb in prison, which I again regard as a demonstration of good parenting. Michael works FIFO and has relied on Caleb to provide support to his fiancée, their mother, and the three children, whilst he has been away on his work swing. She is said to have been very disappointed by Caleb’s offending and believes he did the wrong thing. She would however be happy to allow her children to continue contact with Caleb if he is released into the community.
I accept Caleb is not in a parental-type relationship with any of these children. He is however a much loved and depended on uncle who has clear and close bonds with the children. I was impressed with the fact that the parents generally did not take their children to see him in prison as this appeared to me to show strong parenting and an ability to make hard decisions in the best interests of their children. This will serve them well when Caleb returns to his family.
As to the suggestion propounded by the Minister that telephone and other electronic contact can be maintained with Caleb in New Zealand, I do not accept that. I do not accept that a meaningful relationship can properly be established, matured, and maintained by electronic means from a far distance, and in quite different time zones.[91]
[91] Snowden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4504; ASFIC [97].
I consider that the best interests of the minor children, being the children and stepchildren of Caleb’s siblings and cousin, weighs heavily in favour of revocation.
Expectations of the Australian Community
I am required to consider the expectations of the Australian community as set out in Direction 110 at [8.5]. The consideration of this question, as with the others, is done against the background of the principles set out in Direction 110 at [5.2] and specifically in this case those matters set out in [5.2(2)], [5.2.(3)], [5.2.(4)] and [5.2(6)].
Mr Fotu accepts that this consideration must weigh against revocation. The Minister submits that this consideration weighs strongly against revocation and further contends, in effect, that I have no discretion but to find against Mr Fotu.[92]
[92] RSFIC, 10-11, [d]-[g].
It is useful to consider what paragraph 8.5(1) actually requires me to do. The first sentence of paragraph 8.5(1) is a reflection of the rule of law as it applies to both citizens and non-citizens.[93] The remainder of paragraph 8.5(1) sets out the expectations of the Australian community as a norm. I accept that the effect of this is to deem what the expectations of the community are and thereby preclude me from undertaking any assessment of what, in any particular factual circumstances, the actual expectations of the Australian community might be.[94] That proposition itself is contained in Direction 110 at [8.5(4)]. The utility of this approach by Government in order to assist decision-makers is obvious. However, it does not mean that in my evaluation of the evidence under this aspect of the considerations, I am precluded from departing from the expressed norm of community expectations if the evidence warrants it.
[93] FYBR v Minister for Home Affairs [2019] FCAFC 185 [69]-[70].
[94] Ibid [67], [92]–[93].
Furthermore, no-one suggested paragraph 8.5(2)(c) was relevant to my decision and I do not think it is, based on the evidence of the offending. There were two substantive acts of violence in the offending, the first was the breaking into the house, the second was the confrontation with the woman who lived in the house. As to the first, it was accepted at the sentencing that the group expected a male occupant and that the actual occupant, a woman, was not in the immediate vicinity of the break-in site at the time it occurred, so that she heard, but did not see the break-in.[95] As to the second, Mr Fotu’s evidence, which I have accepted, is that he was not in the room when the confrontation took place.[96] Furthermore, the crime was not sexual in nature, despite the embarrassment the victim felt as a result of her top falling down, and her fear that she was going to be raped.[97]
[95] Exhibit A1, G5, 49.
[96] See paragraph 62 above.
[97] Exhibit R1, G5, 32-33
Paragraph 8.5(3) of Direction 110 reminds me, in effect, a measurable risk of physical harm to the community is not the only type of harm I should consider. Consequently, the harm caused by offending which falls within paragraph 8.5(1) and (2) may be something other than physical harm. That is not a controversial proposition. I accept that the type of harm caused by Mr Fotu’s offending is broader than physical harm and extends to the emotional impact on the victim, the impact on his family, and the societal impact on the criminal justice system. I do however consider that whilst it is plain that harm was caused by the offending, I do not accept that it is likely that harm will be caused in the future and I reiterate what I said at paragraphs [70] – [74] above regarding the likelihood of reoffending. In particular, it is my view that in light of Mr Fotu’s youth at the time of offending, the passage of time since then, his efforts to rehabilitate, and his supportive family, he is unlikely to pose a risk in the future.
In my view, whilst the expectations of the Australian community, as a general proposition, would weigh against revocation, in light of Mr Fotu’s youth, acceptance of wrongdoing and remorse for his offending and its impact, efforts to rehabilitate, supportive family, and the fact that he has lived most of his young life in Australia, I find this consideration only weighs slightly against revocation.
OTHER CONSIDERATIONS
Legal consequences of decision under section 501 or 501CA
I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[98]
[98] Direction 110 [9.1].
This consideration makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision which include:
(a)Mr Fotu’s unlawful status;
(b)becoming subject to detention and removal, pursuant to sections 189, 196, 197C and 198 of the Act;
(c)the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;
(d)a prohibition on applying for other visas, pursuant to section 501E of the Act; and
(e)periods of exclusion from Australia and special return criteria may apply, pursuant to section 503 of the Act and special return criteria in Schedule 5 of the Migration Regulations 1994 (Cth).
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[99] Under section 189 of the Act, the non-citizen must be detained and removed as soon as reasonably practicable under section 198, and to that end, Mr Fotu is currently in immigration detention. If he is removed, he will likely not be able to apply for another visa, or ever return to Australia.
[99] Section 15 of the Act.
Both parties submit that as a result of there being no non-refoulment obligations, this consideration should be given neutral weight.[100] In Singh v Minister for Immigration, Migrant Services and Multicultural Affairs[101] Rangaiah J considered a similar submission which had been accepted by the Tribunal in that matter, and found that it reflected a misconstruction of section 501CA(4) of the Act.[102] Furthermore, it is a failure to consider ‘the direct and immediate statutorily prescribed consequences of the decision in contemplation’.[103] I acknowledge that the comments in Singh were in the context of the Tribunal not considering the legal consequences because a protection claim was a live issue, nonetheless, the proposition that jurisdictional error arises if I fail to consider the direct and immediate legal consequences of an adverse decision holds good. The parties’ submissions on this consideration are misguided.
[100] ASFIC [104]; RSFIC, 11 [h].
[101] [2024] FCA 1273.
[102] Ibid [35].
[103] Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177 [84]; see too NBMZ vMinister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1.
Whilst I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are the intended consequences of the operation of section 501 of the Act, the consequences are harsh for a young man who has all his immediate and much of his extended family in Australia, and who has not been to New Zealand since the age of 4. His exclusion from Australia will prevent him from actively participating in the lives of his nieces and nephews, from assisting his parents as they age, from developing adult relationships with his siblings and parents, and most importantly from having the benefit of the guidance, support and role modelling of his family as he continues on the road to rehabilitation following his conviction and incarceration. This is of particular significance in light of the evidence that he has a lower than average intellectual capacity, and is by reason of that, vulnerable to being led astray.[104]
[104] Exhibit R1, G5, 48; ASFIC [112].
Given these matters, I find that the legal consequences of the decision carry moderate weight in favour of revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2 of Direction 110 provides that, taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction 110, I must consider the extent to which Mr Fotu would face impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. The matters identified under sub-paragraph 9.2(1) are:
(a)Mr Fotu’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to Mr Fotu in New Zealand.
Mr Fotu’s submissions make the point that it would be very difficult for him to relocate and adjust to life in New Zealand having spent all his life in Australia with his family. To return to New Zealand would mean leaving everything, and everyone, behind and starting his life from scratch. Mr Fotu does not have any job prospects waiting for him in New Zealand, nor any family that he has ever known. He would be forced to navigate an unfamiliar place and find a way to support himself without his family and support network to help him.[105]
[105] ASFIC [108].
I accept, as the Minister submits, that as Mr Fotu is a citizen of New Zealand[106] all the usual health, social and economic services available to citizens of New Zealand would be available to him.[107] However, that is not the entire story. There is evidence of Mr Fotu having low intellectual functioning, which means he is vulnerable. This vulnerability may make the already difficult task of adjustment to a new country, where he has not been since the age of 4 years, and where he knows no-one, particularly hard. He has no family that he has contact with in New Zealand, no job prospects, and no wider community support network, including no established Church contacts. He is a young man who plainly needs a support network to guide and assist him in making good life choices. He acknowledges that, as do his family. I have been impressed at the manner in which the family have collectively taken the view that they have failed Caleb by allowing him to associate with young men who were a bad influence, and thereby offend. The family express disappointment at his behaviour, are well aware of its detail, most of them having attended the sentencing hearing, and do not at all suggest that he was an innocent party to the offending; they see his failure as their collective failure and appear committed to ensuring it never happens again.
[106] A1, 105.
[107] RSFIC, 11 [i]-[l].
During the course of his evidence, Pastor Fotu said he would not be in a position to arrange for the remaining family members or the wider Tongan community in New Zealand to support his son, and nor would he have the ability to arrange contacts for Caleb through a church. Similar evidence was given by Ms Tahavalu, Caleb’s sister Chiara, and his brother Michael. While Ms Tahavalu’s in-laws currently reside in New Zealand, they are in the process of moving to Australia and are scheduled to arrive here in April. Therefore, they would not be able to assist Caleb in New Zealand.
The impression I gained from the family’s evidence was that there were no bonds with the members of the wider family who remained in New Zealand. The reason for this is obscure, but I accept there is some reason, be it cultural, religious, social or family, that contact is not maintained and indeed discouraged, between the New Zealand and Australian families.
The evidence stands in stark contrast to the Minister’s submission that Mr Fotu ‘may face difficulties in having to re-establish himself in New Zealand’.[108] Furthermore, ‘re-establish’ is hardly the correct term when the evidence clearly shows Mr Fotu has not been in New Zealand, other than as a transit passenger at the airport, since the age of four and knows no-one there.
[108] RSFIC [60(b)].
I find that the extent of impediments if removed weighs in favour of revocation and moderate weight is afforded to this consideration in Mr Fotu’s circumstances.
CONCLUSION
I have found Mr Fotu does not pass the character test under section 501 of the Act.
I have therefore considered if there is another reason why the Cancellation Decision should be revoked, giving regard to the considerations set out in Direction 110, and weighing the various considerations in accordance with paragraph [7] of the Direction, and in accordance with the authorities which bind my decision making.
In determining the weight to be applied to each individual consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and according to the guidance provided by Direction 110.
Of the primary considerations, I find:
(a)the protection of the Australian community and the expectations of the Australian community both weigh slightly against revocation;
(b)Mr Fotu’s ties to Australia weigh heavily in favour of revocation, and should be given strong weight in the circumstances;
(c)family violence is not relevant to my decision; and
(d)the best interests of minor children weigh heavily in favour of revocation.
In relation to those other considerations which are relevant to this case, I find:
(a)the legal consequences of the decision weighs in favour of revocation and should be afforded moderate weight.
(b)The extent of impediments if removed weigh in favour of revoking the cancellation of Mr Fotu’s visa and moderate weight is afforded to this consideration.
Paragraph 7(2) of Direction 110 states that primary considerations should generally be given greater weight than the other considerations. It also provides that the protection of the Australian community is generally to be given greater weight than the other primary considerations, which is a principle that I find should apply in this case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, I conclude that the primary considerations of the strength, nature, and duration of ties and the best interests of minor children in Australia outweigh the primary considerations which weigh against revocation. I conclude that the other considerations, being the legal consequences of the decision and the extend of impediments if removed, weigh in favour of revocation.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction 110, I am satisfied there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 23 September 2024 not to revoke the cancellation of Mr Caleb Fotu’s Special Category (Temporary) (Class TY) (subclass 444) visa under section 501CA(4) is revoked.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Clare Thompson SC
...........................[SGD]....................................
Associate
Dated: 18 December 2024
Date of hearing: 26 and 27 November 2024 Counsel for the Applicant: Ms J Angel and Mr M Simmons (jurisdiction only) Solicitors for the Applicant: Estrin Saul Lawyers and Migration Specialists Counsel for the Respondent: Ms D Jones-Bolla and Ms H Hofmann (jurisdiction only) Solicitors for the Respondent: Sparke Helmore
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