Fualau and Minister for Home Affairs (Migration)

Fualau and Minister for Home Affairs (Migration) [2018] AATA 3373 (22 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3221
Re:Filemoni Fualau
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris

Date of decision: 22 August 2018
Date of written reasons: 11 September 2018
Place:Melbourne

The Tribunal affirms the reviewable decision dated 24 May 2018 not to revoke the mandatory cancellation of Mr Filemoni Fualau’s Class TY Subclass 444 Special Category (Temporary) visa.
.........................[sgd]...............................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – persistent breaches of family violence intervention orders – aggravated burglary with offensive weapon – Direction No. 65 primary considerations – other considerations – decision affirmed – oral decision given and written reasons later provided
Legislation
Administrative Appeals Tribunal Act 1975, s 43(2B)
Migration Act 1958 (Cth), ss 499, 500(6L), 501, 501CA
Migration Regulations 1994
Cases
Director of Public Prosecutions v Filemoni Fualau [2016] VCC 1851
Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337
Secondary Materials
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member D. J. Morris
11 September 2018
BACKGROUND

The Tribunal considered whether the decision on 24 May 2018 of the delegate of the Minister for Home Affairs (the Respondent) not to revoke the mandatory cancellation of Mr Filemoni Fualau’s Class TY Subclass 444 Special Category (Temporary) visa was the correct and preferable decision.
Mr Fualau was born in 1974 in Apia, in what was then Western Samoa, now Samoa. He is a citizen of New Zealand. He married in 1997 and first came to Australia in 2002 with his wife and their then three children. They have together since had three more children. The Applicant has resided in Australia since 2002, apart from one four-day absence in March 2005.
Mr Fualau held a Class TY Subclass 444 Special Category (Temporary) visa until
6 September 2017 when the Department cancelled that visa under section 501(3A) of the Migration Act 1958 (the Act). The visa was cancelled because a delegate of the Respondent was satisfied that Mr Fualau did not pass the character test in the Act by the operation of section 501(6)(a) on the basis of section 501(7)(c), and because he was then serving a sentence of full-time imprisonment for a criminal conviction. The Respondent has contended that Mr Fualau has a ‘substantial criminal record’ under section 501(6)(a) of the Act, and the Applicant has not contested this point.
Mr Fualau was invited to make representations about the revocation of the cancellation of his visa, and he did so. On 24 May 2018, a delegate of the Respondent made a decision to refuse to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4) of the Act. That is the decision before the Tribunal for review.
Mr Fualau received notice of this decision while incarcerated at Loddon Prison on
30 May 2018. The Act requires that a decision in relation to an application for review must be made within 84 days from the day that a person is notified of the decision. That day was the day of the hearing, 22 August 2018. If the Tribunal does not make a decision, by force of section 500(6L) the Act, the decision under review is taken to have been affirmed.
The Tribunal made an oral decision at the end of the hearing on 22 August 2018 and advised parties that written reasons would be provided. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (Negri), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied, and stated at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
Consistent with the reasoning in Negri, new reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally at the conclusion of the hearing on 22 August 2018.
At the hearing, the Applicant represented himself, made submissions, gave oral evidence and was cross-examined. The Respondent was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers.
The Respondent tendered two volumes of documents under section 501 of the Act
(G documents and SG documents), which were taken into evidence. The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent.
Mr Fualau tendered the following documents which were taken into evidence: Letter dated 16 July 2018 from Mark Wagland, Salvation Army Prison Chaplain, Loddon Prison (Exhibit A1); Change About Safety Plan of the Applicant (Exhibit A2); Letter dated 15 July 2018 from Mrs Rosalia Fualau, mother of the Applicant (Exhibit A3); Letter dated 15 July 2018 from Pastor Samuela Afamasaga of Logan City Seventh-day Adventist Church, Berrinba (Exhibit A4); Death Certificate of Ruby Fualau, sister of the Applicant, on 22 February 2013 (Exhibit A5); Death Certificate of Filemoni Fualau, father of the Applicant, on 17 July 2016 (Exhibit A6); Copy of Australian Citizenship Certificate of Rosalia Fualau dated 7 May 2003 (Exhibit A7); and a Statement of Filemoni Fualau handed up at the hearing on 22 August 2018 (Exhibit A8).
ISSUES AND LEGISLATION
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of the visa if Mr Fualau made representations within the relevant time period, provided for in the Migration Regulations 1994 (28 days in accordance with reg 2.52) and the decision-maker determines that the Applicant passes the “character test”, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. As mentioned, it was not contested that Mr Fualau had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Before the Tribunal was a National Police Certificate relating to the Applicant dated
1 November 2017 (G4, p 30). It records that Mr Fualau appeared before the County Court of Victoria on 2 December 2016 and was convicted of two offences. The first offence was Aggravated burglary – offensive weapon, for which the Court imposed a sentence of two years and nine months’ imprisonment. The second offence was Contravene Family Violence Final Intervention Order, for which Mr Fualau received a sentence of 9 months’ imprisonment, 6 months of which was to be served concurrently with the earlier sentence.
Section 501(6) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’. A person has a substantial criminal record under section 501(7) if the person has been sentenced to a term of imprisonment of
12 months or more. On the facts before me, I find that the Applicant fails the character test on the basis of the sentence passed on him on 2 December 2016.
The National Police Certificate also records a number of other offences relating to Mr Fualau:
·On 11 July 2006 at Dandenong Magistrates Court, the Applicant was convicted of recklessly causing injury, and sentenced to 3 months’ imprisonment to be served by way of an intensive corrections order.
·On 17 January 2012 at the County Court in Melbourne, the Applicant was convicted again of recklessly causing injury and sentenced to a community corrections order for 2 years to perform 200 hours of unpaid community work.
·On 9 May 2014 Mr Fualau was convicted of 3 charges of contravening family violence interim intervention orders for which he was given an aggregate sentence of 3 months’ imprisonment. On the same day he was convicted of another charge of contravening a family violence intervention order and a charge of unlawful assault, for which he received a concurrent sentence of 1 month imprisonment on each count. Also on 9 May 2014, he was convicted of contravening a community correction order and sentenced to 1 month’s imprisonment; a breach of the community corrections order imposed by the Court on 17 January 2012 for which he was sentenced to 3 months’ imprisonment, 2 months of which was to be served concurrently; unlawful assault and sentenced to 3 months’ imprisonment, 2 months of which was to be served concurrently.
·On 15 July 2016 at Dandenong Magistrates’ Court the Applicant was convicted of unlawful assault, intentionally damaging property and contravening a family violence interim intervention order and was sentenced to serve 60 days’ imprisonment concurrently for these 3 offences.
·On 12 August 2016, again at Dandenong Magistrates Court, Mr Fualau was convicted of unlawful assault for which he was sentenced to 14 days’ imprisonment.
The Applicant therefore appeared in an Australian court on five occasions before the conviction of December 2016 in relation to aggravated burglary with an offensive weapon.
Section 501CA then relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Section 501(6) sets out the grounds for failing the character test. It states, in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a)The person has a substantial criminal record (as defined by subsection (7)); or…
Section 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
On the basis of the National Police Certificate and the sentence given on 2 December 2016 (G6, p 33), the Tribunal is satisfied that Mr Fualau has a substantial criminal record, as defined in the Act, because he has a term of imprisonment of 12 months or more. The Tribunal finds that the Applicant fails the character test by virtue of this substantial criminal record.
The sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked. In Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337, North ACJ stated at [345]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
DIRECTION NO. 65
Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014, the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, 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.
Relevantly, the Direction includes the following principles at para 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 vulnerable members of the community such as minors, 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 a 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 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 para 13(2) of the Direction:
·    Protection of the Australian community;
·    The best interests of minor children in Australia affected by the decision; and
·    Expectations of the Australian community.
Other considerations set out in para 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 (paras 8(4) and 8(5) of the Direction).
THE APPLICANT’S CONTENTIONS
Mr Fualau in his written submissions submitted that since his arrival in Australia (with his wife and three children) he has had a further three children who are all Australian citizens. He said that while he has been in prison, he has participated in approximately 11 courses and has come to realise that he needs to change who he is, and to be a better person.
Mr Fualau said that undertaking the courses in prison has better equipped him to prove to his family, especially his children and his wife and to the community at large, that he is a changed person and that he believes he can make a positive contribution to the Australian community.
Mr Fualau also provided some character references from the English teacher at Loddon Prison and from the Salvation Army Chaplain, attesting to his good conduct in prison, and from his mother who set out what he had done in the past to support her. The Tribunal has taken these character references into account in this consideration.
THE APPLICANT’S EVIDENCE
At the hearing, Mr Fualau made certain acknowledgements about his past conduct. He stated that, since his time in prison, he has learned strategies to better equip him to improve his behaviour.
In respect of his cultural background, Mr Fualau contended that he was brought up with strict social customs emanating from Samoa. These customs placed the father at the head of the household and required the children and, to some extent, the wife to follow the requirements of the father. He said that he has slowly learned that Australian cultural mores would lead him to be less strict in terms of the whereabouts of his wife and his children, and he has been learning to be accepting of this.
In terms of the aggravated burglary with offensive weapon conviction, for which the Applicant is currently serving his sentence, he was adamant that he did not carry a machete into the house. He said he only carried a torch and left the machete somewhere outside the house. Mr Fualau also denied a later incident where the Court heard that he threw a Besser brick through the window of the house where his wife and children were living.
On the day before the early morning when the events took place leading to the aggravated burglary conviction, Mr Fualau said he had visited a friend who had given him crystal methamphetamine, commonly called ICE. He said he had not taken the drug before and he admitted it affected his subsequent behaviour.
CONSIDERATION OF THE DIRECTION

As mentioned above, the Tribunal must, because of section 499 of the Act, consider the merits of the decision under review in terms of the application of the Direction, relevantly Part C of that instrument, which relates to mandatory cancellation of visas when the

non-citizen has been convicted of an offence carrying a sentence of more than 12 months.
Primary consideration: Protection of the Australian community (para 13.1 of the Direction)
The Direction requires the Tribunal to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the

non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (para 13.1.1)
The offence for which Mr Fualau is serving his sentence has the following background, as set out by His Honour Judge Lyon in the County Court of Victoria (G6, p 33-44). Mr Fualau was separated from his wife. At the time of the offending she was living in a house in Dandenong North with the six children of the marriage. Also living at the house was: a 16-year-old niece; a 12-year-old nephew; and a friend of one of the Applicant’s children.
On 31 January 2016, Mr Fualau was involved in an incident at that house, which the police attended. On 1 February 2016 an interim intervention order was imposed on Mr Fualau not to approach the house, an order which he told the police at the time he understood. His Honour said:
6 … When you were interviewed by police after your arrest on 15 February 2016, you told them that you knew of the intervention order, and that it said, in your words, “Don’t go close to the house and two metres, 200 metres, and if I breach the order, I can go to prison.”
7. I am satisfied that you knew and understood the terms of the order prohibiting you to go to the property. I am also satisfied that when you returned again to the property on 13 February 2016, you understood the likely consequences of breaching the order, but carried on anyway.
In the early morning of 13 February 2016, Mr Fualau went to the house and entered it through a second-storey window. He had with him gloves and a large machete with a blade of some 45 centimetres. The Judge called it ‘a frightening and menacing weapon.’ The Applicant turned on the light and woke his estranged wife. He then went from room to room, searching the house. The room in which the Applicant’s 16-year-old niece was sleeping was locked. Mr Fualau admitted at the Tribunal hearing he tried to pick the lock before she opened it and he then searched that room, as well. It appears Mr Fualau was looking for a man he thought was in the house, but evidently was not.
I do not accept Mr Fualau’s oral evidence that he did not take the machete into the house with him. That is inconsistent with the evidence taken by the police at the time. It is also at odds with the written submissions made by Mr Fualau’s lawyers to the Court (SG2, p 60):
The offender concedes is he pleading guilty to serious offending. Any offence involving family violence is a serious matter. The offender concedes the existence of the intervention order, the fact he carried a weapon and the fact that children were present at the house aggravate his offending.
The presence of the weapon significantly upgraded the offence and led to a more significant sentence. It is not plausible to me that, if he had in fact not been armed, Mr Fualau would not have pressed this fact at the time he was charged and when he was arraigned.
Two days later, on 15 February 2016, the Court issued a further intervention order at the request of the Applicant’s wife, and Mr Fualau was present when the Court made that order. That very night, around midnight, he again went to the same house and threw a Besser cement block through a bedroom window (G6, p 35). The police were called and Mr Fualau was arrested. At the Tribunal hearing, the Applicant claimed he did not throw the Besser brick through the window; however this is the first time he has disputed an important fact surrounding this incident, which he has had many opportunities to dispute in Court proceedings earlier.
The Crown accepted in that criminal proceeding that Mr Fualau did not have an intention on 13 February 2016 to assault his wife or the children present in the house. However, it is clear to the Court, and the Tribunal, that this was a premeditated crime. As the Judge said (G6, p 36):
… Furthermore, some thought went into obtaining and carrying the weapon. It was not spontaneous offending. Moreover your actions on this occasion are marked by a persistence of conduct over the years, which must affect the assessment of the seriousness of this offending.
Mr Fualau obtained the machete and the gloves and went to the house with the intent, if not to do harm to someone, to menace that person. He went to the house on the first occasion at 4 a.m. and on the second occasion at around midnight. The Tribunal concludes that he must have frightened the occupants of the house, who were asleep, when he woke them at this hour, and then went about searching the residence.
The Applicant knew that he was breaching intervention orders at the time. The Judge said that a total of seven family violence intervention orders have been made against Mr Fualau since 2013 preventing his access to members of the family. The Judge also stated that it appears the Applicant was charged with assaulting one son and his daughter in separate minor disputes.
The Tribunal notes that Mr Fualau has previous convictions for recklessly causing injury, so there is something of a pattern in his offending. At the hearing, the Applicant gave evidence about an incident at a service station in 2006 (which led to a conviction for recklessly causing injury). Even if the Tribunal accepts the oral evidence from Mr Fualau that he was provoked by another driver in a ‘road rage’, the Applicant admitted to punching that person, who he did not know, leaving him lying on the ground, and then driving away.
Mr Fualau also gave evidence about an incident in a car park in 2011 (which led to another conviction for recklessly causing injury). Mr Fualau asked a driver to move his car, as he was blocking egress from the car park. He said that the other driver, in that altercation, spat on him and kicked him. That may have been the case and it is what the Applicant told the police at the time, but Mr Fualau also admitted that he punched the other driver directly. The driver fell and hit his head. The Applicant left him on the ground, and then asked other people to move their cars so that he could drive off from the scene with his wife. This man was also a stranger to the Applicant. The victim required hospital treatment and stitches for a head wound. This assault appears to be a wholly disproportionate response to the other driver blocking Mr Fualau’s exit from a car park for a short period.
The Direction requires me to view violent crimes and crimes committed against vulnerable members of the community very seriously. I regard sleeping children in this category of vulnerability, when they are entitled to believe they are in a safe place. Mr Cunynghame made submissions at the hearing that the driver in the car park should, at the age of 57, be classified as an elderly person in terms of the Direction and therefore in the category of a vulnerable victim. The Tribunal did not accept that contention. However it is relevant to me in terms of the Applicant’s conduct in each of these separate instances, that, whatever provocation may have occurred, after committing the assaults, Mr Fualau left both the victims lying on the ground, and in one case injured and requiring hospital treatment.
The Tribunal is also required to consider whether there has been a trend of increased seriousness in Mr Fualau’s offending. On the evidence of the National Police Certificate and nature of the offences recorded since 2006, there has been.
In regard to the risk to the Australian community should Mr Fualau commit further offences, I note that there is evidence before me that the Applicant has spent his time while in prison productively, in terms of undertaking courses through Bendigo TAFE and other institutions. This is to his credit. However, it is particularly disturbing to me that

Mr Fualau knew, on his own admission, about the terms of the intervention orders imposed upon him by the Courts, but chose nevertheless to deliberately flout those orders.
I accept that the Judge decided the Applicant did not intend to do physical harm to anyone at the house that night on 13 February 2016, except perhaps the non-existent man who he thought was there with his wife that evening. I also accept Mr Fualau’s ability to reason was perhaps affected by taking ICE earlier in the day. But I consider that the Australian community’s view about domestic violence offences is, as the Judge said at paragraph 21 of the reasons for sentence (G6, p 37), hardening. There is little tolerance in the community for those who commit such offences:
The net effect of your prior matters is that you have real experience of FVIVO’s [family violence intervention orders] and you are fully aware that contravention of the orders is a matter taken very seriously by the courts. I can assure you, the community attitude to family violence and to breaches of such orders, especially when attended by violence or frightening actions, is hardening. The sentence of this Court must reflect the fact that the community will not tolerate men who refuse to accept the wishes of their family and the orders of the courts, by breaking into homes and confronting those inside.
It may be that Mr Fualau’s rehabilitative courses undertaken in prison have gone some way to lowering the risk of his re-offending in this manner, but I am not convinced that there is no risk. The only psychological assessment the Tribunal has, by Mr Jeremy Parker (SG2, p 64), assesses the Applicant’s risk of ‘reoffending violently’ at a probability of 17 per cent in the next seven years. Mr Parker was of the opinion that Mr Fualau was a good candidate for rehabilitation.
The Courts have endeavoured to apply a range of sentences upon Mr Fualau in the past to moderate his behaviour, but by the Applicant’s conduct it is plain that he has not responded positively to these measures and has continued to offend. The Tribunal has an additional concern that the Applicant’s denial of certain key facts about two offences at the Tribunal hearing illustrates a lack of remorse or understanding of the impact of his criminal conduct.
This consideration weighs against setting aside the refusal to revoke the mandatory cancellation of Mr Fualau’s visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (para 13.2)
There are four children of Mr Fualau’s marriage who are minors and who are relevant to this consideration. The Tribunal accepts the Applicant’s statements that he loves all his children and that cancellation of his visa will have a significant effect on his relationship with them. Balancing that is the fact that many orders have been imposed on Mr Fualau not to approach his children, and the fact that he committed minor assaults on two of them.
At the hearing, Mr Fualau stated he had not had contact with any of his children since 2016. The Tribunal is not satisfied, given the Applicant’s pattern of offending, that he would always play a positive parenting role into the future, though I note that Mr Fualau has been attempting to address this situation through undertaking various courses while incarcerated. I also note Mr Fualau’s evidence that, if allowed to stay in Australia, he would move to Queensland to be with his mother (which is also reflected in her statement, Exhibit A3), rather than endeavour to stay in proximity to his children or to reconcile with his wife.
With this set of circumstances, I therefore find that this consideration weighs in favour of revoking the mandatory cancellation of the Applicant’s visa, but not heavily so.
Primary consideration: Expectations of the Australian community (para 13.3)
The Australian community is, by definition, made up of individuals with widely different views. Determining what those expectations are, a necessary requirement of the Direction, should, in the view of the Tribunal, be done cautiously.
However, the Tribunal considers it reasonable that the Australian community expect members of the community, whether citizens or non-citizens, to abide by and respect our laws. I am of the view that Mr Fualau’s persistent breach of family violence orders would be a factor that the Australian community would count against him. Noting that Mr Fualau has not, in general terms, been physically violent to his family, the fact that the victims of his offending included his wife, younger children and the children of relatives and a friend, would be viewed in a very dim light by members of the Australian community.
I also consider that the Australian community would take an unfavourable view of the two convictions Mr Fualau has related to unprovoked assaults on strangers, assaults which were totally disproportionate responses to ordinary everyday interactions in the community.
The Tribunal concludes that this primary consideration weighs against revoking the mandatory cancellation of Mr Fualau’s visa.
Other consideration: International non-refoulement obligations (para 14.1)
The Minister did not make any submissions on this consideration. The Tribunal finds, having considered the contents of para 14.1 of the Direction, that this consideration is not relevant in this matter. Mr Fualau is a citizen of New Zealand. In the absence of other evidence, the provisions of the international treaties set out in para 14.1(1) of the Direction are not engaged.
Other consideration: Strength, nature and duration of ties (para 14.2)
As mentioned earlier, Mr Fualau has resided in Australia since 2002. His widowed mother lives here, so do some of his siblings. His six children and his wife live here. The Tribunal notes that the Applicant had some minor convictions in 2002 in New Zealand when he lived there (G5, p 32), but the Tribunal did not consider these significant in this consideration. What is significant is that Mr Fualau began offending in Australia in 2006, just four years after arriving. There was then a gap of six years of no offending, but since 2012 there has been a string of appearances before the Courts and convictions for breaching orders previously imposed at earlier Court appearances.
There is evidence that Mr Fualau has been gainfully employed for periods during his Australian residency, which is to his credit. However, it is notable that he was offending while at the same time working.
I note that the Applicant’s mother has given a written statement about how, if Mr Fualau was living with her, he could assist her with her errands such as driving her to church. However, Mrs Fualau lives in Queensland and has been able to undertake these chores for some time without the Applicant’s assistance. This therefore does not carry significant weight with the Tribunal, noting that I do accept the Applicant’s mother has been relatively recently widowed and that this assistance from her son may well be valuable to her.
Other consideration: Impact on Australian business interests (para 14.3)
The Tribunal did not consider this consideration as it was not raised by parties and does not appear to be engaged in this particular application.
Impact on victims (para 14.4)
There will be an effect on the victims of Mr Fualau’s criminal conduct if the decision is made to revoke his visa cancellation. In the absence of other information, it would appear from the range of orders sought by the Applicant’s wife and children against the Applicant, the effect would not necessarily be positive; it may be neutral.
Other consideration: Extent of impediments if removed (para 14.5)
The Direction requires the decision-maker to consider what impediments Mr Fualau may face if removed from Australia to his home country in establishing himself there and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Direction requires the Tribunal to take into consideration the Applicant’s age and health, any language or cultural barriers and available social, medical or economic support in that country.
In terms of New Zealand, the Tribunal finds that the society of that country is very similar to Australia’s. Mr Fualau is familiar with that country, and would not face language or any significant cultural barriers if repatriated. He has an employment history and a range of skills, notably a recently acquired heavy duty vehicle licence, which would be useful assets in obtaining employment. The courses he has undertaken and his previous work experience are to Mr Fualau’s advantage in his employability. The Tribunal notes the Applicant’s evidence that he has a brother residing in New Zealand, which would give him at least some familial base there.
Conclusion
The Tribunal concludes that the nature and seriousness of Mr Fualau’s persistent offending, and the fact that there is some risk of reoffending, weigh against revoking the mandatory cancellation of his visa. The Tribunal finds that these considerations outweigh the considerations that might have weighed in his favour or neutrally.
The Tribunal is fully conscious that there would be a significant effect on Mr Fualau, his mother, his extended family and, notwithstanding recent events, his wife and children if he loses the right to remain in Australia. However, the conclusion of the Tribunal, taking all the circumstances into account, is that refusal to revoke mandatory cancellation of the Applicant’s visa is the correct decision in law and the preferable decision where discretion is exercised.
DECISION
The Tribunal affirms the reviewable decision dated 24 May 2018 not to revoke the mandatory cancellation of Mr Filemoni Fualau’s Class TY Subclass 444 Special Category (Temporary) visa.

73. I certify that the preceding 72 (seventy - two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..........................[sgd]..........................................
Associate
Dated: 11 September 2018

Date of hearing: 22 August 2018

Applicant: Self-represented

Solicitors for the Respondent: Mr Adam Cunynghame - Sparke Helmore

[2018] AATA 3373

22 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date of hearing:	22 August 2018
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Adam Cunynghame - Sparke Helmore