Fuamatu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 2886

Fuamatu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2886 (7 September 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5184

Re:Faapio Pili Fuamatu  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member M Griffin QC

Date:7 September 2022

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 15 June 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category visa is revoked.

..............................[SGD]........................................

Senior Member M Griffin QC

Catchwords

MIGRATION – mandatory cancellation of visa – TY Subclass 444 Special Category visa – where visa was cancelled under s 501CA(4) because applicant did not pass character test – criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – special consideration – mandatory cancellation of visa is revoked

Legislation

Migration Act 1958 (Cth)

Cases

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]

FYBR v Minister for Home Affairs [2019] FCAFC 185

Secondary Materials

Direction No. 90 – 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 M Griffin QC

7 September 2022

1. The Applicant seeks review of a decision of a delegate of the Minister not to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2.       The Applicant arrived in Australia on 30 December 1995 and is presently 55 years of age. He is a citizen of Samoa and New Zealand and held, until the mandatory cancellation, a Special Category (Class TY) (Subclass 444) visa (visa).

3.       The basis for the mandatory cancellation concerns the Applicant’s criminal history which most recently, on 4 November 2020, relates that the Applicant was convicted of two counts of assault occasioning actual bodily harm for which he was sentence to a term of imprisonment of 20 months.

4.       A review of the Applicant’s criminal history which dates back to 1997 discloses that there were two substantial criminal offences, both involving violence against two family members, together with other offending which includes assaulting his wife and traffic offending, as well as property offences and some remote convictions in New Zealand.

5.       On the basis of that criminal history, it is clear the Applicant has a substantial criminal record and the sole question for this Tribunal is whether there is another reason why the mandatory cancellation should be revoked.

6.       In June 2022, the delegate of the Minister refused to revoke the cancellation of the Applicant’s visa and subsequently the Applicant applied to this Tribunal for review. There is no question as to the appropriate timeliness of various steps undertaken to bring this matter before the Tribunal.

BACKGROUND

7.       The Applicant was born in 1967 and arrived in Australia in December of 1995. The Applicant has worked fairly continuously since he has been in Australia and he has a wife, a number of adult children and four minor children who are relevant to these proceedings. Two of those children, minors, were victims of the Applicant’s offending.

8.       Consistent with the culture of the Applicant, he has a large and supportive family who recognise and appreciate the nature of his past offending and who continues to support him, including his wife who has been a victim of his behaviour in the past and also all of his children, including the two young male victims, the subject of his offending in 2020.

Some Observations as to Applicant’s Oral Evidence

9.       The Applicant gave evidence during the course of the hearing and in cross-examination, effectively denied significant involvement in the offences to which he was sentenced in 2009 and which occurred in 2008. Those offences related, in part, to his daughter’s then boyfriend and the violence perpetrated by the Applicant upon that person.

10.     Denial by the Applicant included, in the first instance, that the driving of the car was accidental when it ran into the victim and further, the Applicant believed the victim actually to be an intruder and that he was defending his home.

11.     During the course of further cross-examination, the Applicant, upon being urged to ensure that he told the truth and the consequences of lying to the Tribunal, changed his version somewhat. Later in the hearing, after evidence had been given by members of his family, the Applicant accepted that he knew the victim, but stated that the person who had come to his home was not recognised by the Applicant as the daughter’s boyfriend. The Applicant further accepted that there had been a telephone call from the victim prior to the victim’s arrival at the house in which the Applicant was informed that the victim was going to come to the house, or was actually at the house, at the time of the telephone call.

12.     The Applicant consistently denied that he deliberately drove the vehicle knowing that the victim was his daughter’s boyfriend and further, insisted in various ways that he was protecting his house from an intruder.

13.     This evidence is entirely inconsistent with the basis upon which the Applicant was sentenced in 2009. The Tribunal regards the Applicant’s version at hearing as incredible and inherently incredible in fact.

14.     The Applicant was represented by legal representatives at the hearing and it cannot be supposed that he did not make it clear that the version presented at the Tribunal hearing was, in fact, his version of events. The Applicant was sentenced on a far more serious basis.

15.     Furthermore, the explanation given by the Applicant to the Tribunal at hearing is internally inconsistent and not credible.

16.     The Tribunal finds that the Applicant has lied on a significant matter during the course of his evidence.

17.     There may be many reasons why a person will tell lies even in serious proceedings such as the Applicant’s own Tribunal proceedings. Lies may be told by a witness in an attempt to deflect blame, to escape punishment or out of a sense of embarrassment for the behaviour about which the lies are being told.

18.     Because of the view the Tribunal has formed on other independent and objective evidence about the Applicant, which evidence is discussed below, the Tribunal is prepared to discount the deliberate behaviour of the Applicant in his cross-examination and not penalise or punish him in the overall consideration of the matters in respect of which this application has been brought.

Issues

19.     The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

20. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

Relevant legislation and policy

21.     Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

22. Section 501CA(4) provides that:

(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.

23.     In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

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.

24.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

25.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

26. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

27. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));

(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

28.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

29.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

30.     These principles are of course dependent upon the facts and circumstances of each case.

31.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

32.     The Tribunal must also take into account other considerations insofar as they are relevant.

33.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)  strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.

The character test

34.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

35.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

36.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

37. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

38.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

39.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

40.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence, or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii)  or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

Seriousness of Offending

41.     It is relevant to deal with the two most serious offences commencing with the offending in 2008. The Tribunal considers, looking at the evidence and the nature of the relationships that have been established, that in this case, the offending in 2008 and 2020 should be regarded as incidents of family violence.

42.     In 2009 the Applicant was convicted of using an offensive weapon to commit an indictable offence and assault occasioning actual bodily harm. For the latter offence, the Applicant was sentenced to imprisonment for 18 months, and the more serious offence of the use of an offensive weapon, a sentence of 45 months was given.

43.     The circumstances of this offending are particularly serious, involving not only the use of a car as a weapon, but involving his daughter’s then boyfriend. It is obvious to the Tribunal that in much of the offending, in relation to the offences of 2008 and 2020, the Applicant’s own cultural attitudes and personal attitudes, the result of his own cultural background and upbringing, have come into play. Although this perhaps makes the Applicant’s behaviour somewhat more comprehensible, it does not excuse nor ameliorate the seriousness of that conduct in 2008 and 2020 or at any other time.

44.     As to the offences of 2008, the Applicant deliberately drove his motor vehicle at the victim, the boyfriend of one of his daughters, and held him by means of the vehicle between that vehicle and a brick pillar. Then, when the victim was disabled by means of those injuries suffered from the motor vehicle, the Applicant punched the victim to the face and stomped on his head numerous times. The victim suffered lacerations and tendon damage which required treatment. As has been referred to above, the Tribunal rejects the Applicant’s version of these events given in oral evidence at the Tribunal hearing.

45.     Merely to set out these facts is sufficient to demonstrate the utter seriousness of this behaviour. The cause of the Applicant’s conduct apparently stems from the fact that he disliked the relationship between his daughter and the victim.

46.     The Tribunal regards this conduct as extremely serious and, as a result of that conduct, the Applicant was warned, in clear terms, of the danger to his visa and revocation should conduct of a similar type occur again. The Tribunal is satisfied that by 2011 the Applicant understood the seriousness of future behaviour and the likely consequences that would affect his visa status.

47.     The Applicant suggests genuinely that he attempted to address his behaviour at that time. There is no satisfactory evidence that the Tribunal considers which appears to have had any positive effects. In fact, further serious behaviour with two members of his family occurred in 2020.

48.     The Applicant committed offences against his two adopted sons in November 2020. Their ages are now 13 and 15 years. On the facts as they appear from Court records, the Tribunal is satisfied that the Applicant indulged in some form of disciplinary behaviour, which he himself suggested, he had been subject to as a child. Oral evidence at hearing confirmed these essential facts to the Tribunal.

49.     The Applicant was sentenced to 20 months imprisonment for hitting each boy with the handle of a broomstick a number of times; one boy to the shoulders and the other boy to the head and jaw. Both boys received bruising and one had damage to his rib cage.

50.     This, the Tribunal regards also, as extreme and extensive violent conduct against vulnerable children.

51.     On the evidence, it is not apparent to the Tribunal that abuse of alcohol played a significant role in the Applicant’s offending behaviour.

52.     There has been other offending as well.

Some Observations on Evidence

53.     The history of the Applicant’s offending, although it commenced soon after his arrival in Australia has, since 2008, been conspicuously lacking in a history of continuous offending, the only real and problematic offending being that against his two sons in 2020. A realistic appreciation of that offending history suggests that, as the Applicant has become older, his offending, although it cannot be forgiven, has decreased at least numerically which is perhaps, in the Tribunal’s mind, indicative of someone who has demonstrated both increased maturity and the possibility of being able to better control his violent behaviour in the future.

54.     A consideration of the Applicant’s offending, in the Tribunal’s opinion, must take into account the particularly serious offending in relation to the daughter’s boyfriend in 2008 and, of course, must not be disregarded. However, it is relevant to recognise that that offending is now more than 13 years ago and the latest offences against his two sons are not in so serious a category. It cannot be said that the Applicant’s offending has increased in seriousness. Rather, the opposite is correct. The Tribunal does, however, take into account all the other offending, including other acts of violence referred to in the material before the Tribunal and the unenviable traffic history that also demonstrates a lack of an appropriate attitude to the care and concern that should be accorded to users of the road and other persons who might be injured.

55.     The Applicant has undertaken, since incarceration, a large number of courses which are relatively short but nonetheless, in the Tribunal’s opinion, there being no other evidence to the contrary, suggest a desire to reform by the Applicant himself, and the likelihood that those courses which are approved courses will have had some positive effect in the Applicant’s future rehabilitation which is likely to diminish any future risk.

56.     Furthermore, it is clear on the evidence that the Applicant is genuinely remorseful for his conduct and at the hearing of this matter displayed, in the Tribunal’s opinion, a suitable, genuine and insightful appreciation of his past offending. Furthermore, the Tribunal considered, on the Applicant’s oral evidence, he was generally intending to resist future offending.

57.     Issues of culture have been raised in this hearing in relation to the Applicant’s behaviour and although it is perhaps an explanation for his behaviour, the Tribunal does not take cultural matters into account in order to diminish or forgive the behaviour of the Applicant.

58.     There has been some allusion to the poor behaviour of the two sons in respect of whom the Applicant offended in 2020. The fact that those boys misbehaved is irrelevant to a consideration of the Applicant’s violent behaviour to them.

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

59.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Risk – Discussion

60.     The Applicant’s offending history as disclosed by the evidence and his criminal history report demonstrates offending, cumulatively, as particularly serious but is recognised by the Tribunal as containing some quite remote, more youthful offending. The domestic violence, which is family violence accepted by the Tribunal and discussed elsewhere in this decision is, the Tribunal accepts, of an extremely serious nature.

61.     The Tribunal also recognises, however, that the offending has not escalated in seriousness. In fact, the offending that most recently was committed against two minor children in 2020 has also demonstrated, although very serious, a lessening of offensive and criminal behaviour since 2009. There have been no recent breaches of any orders, the last breach being more than 20 years ago.

62.     As to the question of risk, there is no doubt that the Applicant, on his overall history, presents a risk of offending in the future and the likely victims are potentially members of his family, having regard to his past history.

63.     Although his family have been present in his life and concerned about his behaviour in the past, the Tribunal senses a reinvigorated and greater appreciation of assistance that needs to be rendered to the Applicant to keep him from offending in the future. This is a positive factor, the Tribunal considers, and is likely to reduce the risk of future offending.

64.     The Applicant is remorseful and on the Tribunal’s view, he has both accepted the seriousness of his past offending and has a better appreciation now, as demonstrated by his oral evidence, of the ways and means to limit or stop offending in the future. It appears to the Tribunal that much of the Applicant’s offending behaviour is linked to his upbringing and cultural background.

65.     The Applicant has demonstrated that he has undertaken a number of relevant courses to manage domestic violence and anger, as well as other courses that generally demonstrate a willingness and determination to improve and not offend in the future.

66.     Although the Applicant was warned in 2011 of the consequences of visa loss should he re-offend, it is apparent that he did not then appreciate the seriousness of that warning. It is now apparent to the Tribunal that the Applicant does appreciate such a necessity to behave properly and lawfully and that is likely to encourage better future conduct and self-control and more likely limit the risk of future offending.

67.     There are many references and statements tended by persons who know the Applicant and those statements fall effectively into two categories.

68.     The references from the Applicant’s family all express powerfully and emotionally, in varying ways, the fact that the Applicant should remain in Australia as father and effective head of the household and should not be returned to his home country. The ages of these children ranged from adults to teenagers and each one explains their separate and individual relationship with their father and the need for him to remain in Australia, including for example, a son in his early 20s who has experienced loss and financial and mental anguish because his father has not been present in his life and expresses similar concerns about the future, particularly in regard to his mental health and the sense that he is unable to assist his mother should the Applicant be removed from Australia.

69.     It is perfectly apparent that the mother will suffer enormously in many aspects of life, including emotional and financial hardship should the Applicant be removed.

70.     This collection of statements made by the family are indeed powerful and compelling as to the reasons why the Applicant should not be sent to his home country.

71.     The second category of statements are really properly described as references coming from a variety of people whom the Applicant has met in the community and with whom he has worked, and includes even a travel agent with whom the Applicant has had dealings on his many return trips to Samoa.

72.     All of these references are particularly impressive, for they describe different relationships with the Applicant and deal with his work life, general knowledge about his character and work life and social life within the Australian community.

73.     The Tribunal has carefully considered the terms of the various statements made particularly by the Applicant’s family and whether they are so formulaic as not to properly represent a real and true picture of the Applicant. The Tribunal considers, on careful examination of both the written statements and the oral evidence given, that they are all statements that are truly heartfelt, genuine statements by family members. The Tribunal also considers the other references by friends, relatives and others who know the Applicant in various other ways, and decides that the statements and references should be regarded and accepted on their face value.

74.     It is fair to say that these references are glowing and appear to appreciate, to varying degrees, the past conduct of the Applicant.

75.     Together, all of these statements, both familial and social and/or work-related, provide a very powerful, positive argument for the Applicant to remain in Australia and have his visa returned.

76.     In all of this, the Tribunal takes a general consensus of the positive views and opinions expressed in the references and family statements concerning the Applicant, and considers the Applicant against that positive background.

77.     Although the Applicant’s past conduct cumulatively and independently in relation to the family violence is regarded by the Tribunal as particularly serious, and furthermore, even though the Tribunal recognises there is a risk of future offending by the Applicant, the Tribunal assesses that risk as a relatively low risk, having regard to all the evidence discussed above and elsewhere in this decision.

78.     This consideration, overall, must count against the Applicant and the Tribunal considers overall that it weighs against the Applicant and against revocation of the mandatory cancellation of his visa.

Primary Consideration 2 – Family violence committed by the non-citizen

79.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

80.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).

81.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

82.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

83.     There are two serious offences of family violence which are referred to in Primary Consideration 1 and elsewhere in this decision. Although separated by 12 years, with no relevant intervening offending, the Tribunal considers them very serious in accordance with Direction No. 90.

84.     An Apprehended Domestic Violence Order (ADVO) was taken out for the protection of the children and there is no evidence that that Order has been breached by the Applicant who has been in custody and detention since being sentenced. There was an earlier breach of such an order which the Tribunal has taken into account.

85.     The Applicant assaulted his wife in the presence of four of their children in 1997 in circumstances where it appears abuse of alcohol may have played a role. That offence involved hitting his wife a number of times to the body. No weapon was used. The Applicant was fined $1000. This assault constituted the breach of an earlier domestic violence order taken out for the protection of his wife.

86.     On another occasion the wife called police because of the Applicant’s drunken behaviour, although there is no suggestion that although she was apparently fearful, no physical incident took place, and the Tribunal regards this as a particularly minor incident of family violence.

87.     The Respondent refers to two further separate matters in paragraph 28(a) and 28(b) of its Statement of Facts, Issues and Contentions and argues that these separate matters should be regarded as family violence. As to paragraph 28(a), that witness was not a witness called to give evidence in these proceedings and therefore, unable to be tested as to his assertions. As to paragraph 28(b), the wife’s evidence was so imprecise and vague that the Tribunal is not prepared to act upon it.

88.     The Tribunal is not satisfied that the accounts given in the form in which they are placed before the Tribunal are a satisfactory evidentiary basis to decide without those matters whether those matters are domestic violence, and for the purpose of this hearing, proposes to ignore those matters for all purposes contrary to the Applicant’s interests.

89.     The family violence accepted by the Tribunal in this case is regarded as particularly serious and the Tribunal considers that overall, it carries considerable weight against the Applicant and against revocation of the cancellation of his visa.

Primary Consideration 3 – Best interests of minor children in Australia

90.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

91.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

92.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

93.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

94.     There are four relevant minor children. D, born April 2006, K, born 2007, C, born 2008, and J, born 2009.

95.     It is accepted by the Respondent that the Applicant lived with his wife and the four children. He supported them and further, had a strong paternal relationship with them. Furthermore, it is clear on the evidence that the children have suffered emotionally and financially as a result of the Applicant’s imprisonment and detention. The Applicant has been a good provider for his children and is, on the evidence, properly regarded as having a good work history. His children benefited from this. The wife has had difficulty supporting the children financially since the Applicant has been detained.

96.     These children powerfully and passionately express a desire for the Applicant to remain in Australia and wish him to return home.

97.     It is apparent to the Tribunal that the best interests of these minor children, because of their relationship with the father and his support in various ways for them, would be best addressed by revocation of the cancellation of his visa.

98.     It is, in fact in the Tribunal’s view, an extremely weighty issue in the Applicant’s favour, even though the Tribunal recognises that two of the children were victims of the Applicant’s excessive and abusive disciplining. The Tribunal gives weight to the cultural aspects of the children’s relationship with their father in this regard, and although the violence is not condoned, it explains perhaps, the inconsistent views of the two male child victims as victims and as children of the father.

99.     Despite the submissions of the Respondent, the Tribunal is of the view that all four children equally will have their best interests served by their father remaining in Australia. This is so even though the Tribunal also recognises, not inconsistently, that there is also the likelihood of future risk of violent behaviour by the Applicant to his children.

100.    There are 13 minor grandchildren whose birth dates are between 2006 and 2021, and two nieces born in 2005 and 2006.

101.    The Applicant argues that he holds a strong bond in a familial sense with all those children and it is not possible on the evidence to distinguish amongst them separately. The Tribunal accepts, as does the Respondent, those submissions that also add to the powerful weight of this consideration, which primarily relates to his own children.

102.    Although it is always possible to maintain some connection by electronic and other means from distant places, the best interests of all these children are served by the Applicant’s presence in Australia.

103.    The Minister suggests, in effect, that there should be a reduction of the weight in this case because the prospect of risk to some of those children, particularly his own children. The Tribunal rejects this submission and focuses on the best interests of the children. Although there is somewhat an inconsistency in relation to the Applicant’s potential violent behaviour, nonetheless, the Tribunal considers this consideration a particularly powerful consideration in the revocation of the mandatory cancellation.

Primary Consideration 4 – Expectations of the Australian community

104.    Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

105.    Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)acts of family violence; or

(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)worker exploitation.

106.    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

107.    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

108.    This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

109.    It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’, relevantly now stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68), referring to the relevantly similar provision in the previous Direction No. 65.

110.    There are, however, a number of factors which significantly affect the weight to be applied to this consideration. These include the length of time the Applicant has lived in Australia, which the Tribunal regards as a particularly substantial time, the very powerful references made by associates and others of the Applicant who plead for him to stay, the compelling emotional and heartfelt statements of his family, as well as the powerful reasons they express for the Applicant to remain in Australia. Most significantly in the Tribunal’s mind, is the presence of four minor children whom the Applicant would necessarily have to leave were he to be removed.

111.    For the above matters in combination which are, the Tribunal acknowledges, not the only features in the Applicant’s favour, those must weigh and in fact do weigh in the Tribunal’s consideration of this primary consideration of community expectations and diminishes the weight to be attached to this primary consideration which operates, nonetheless, against the Applicant.

Other considerations

A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

112.    The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

113.    The Applicant has lived in Australia since 1995, although he has returned on occasions to either Samoa or New Zealand where he has extended family. The Applicant has continued substantial social connection with his family members in those two countries and it is supposed that he would have no difficulty re-assimilating into Samoa or New Zealand with those family connections. The Tribunal is satisfied that the Applicant appreciates the culture and language of those two countries and would also therefore not experience great difficulty should he return to live in either of those two countries.

114.    The Applicant appears to be in satisfactory health and would be able to access a satisfactory standard of health either in Samoa or probably a better standard of health in New Zealand which is likely to be similar to that of Australia in its facilities.

115.    The Respondent accepts that the evidence indicates that the Applicant will face significant social hardship upon return to Samoa or New Zealand, namely due to separation from his wife and children and the change in those relationships being maintained at a long distance.

116.    The Tribunal considers that the separation and removal from his family will create considerable emotional distress for the Applicant and the Applicant will recognise and sense the reciprocal loss that his family will have for his removal. It is apparent that those who speak well of the Applicant will miss him and the Applicant will recognise that and that will form part of the Applicant’s sense of emotional loss.

117.    The Applicant will no doubt experience some short-term difficulty in establishing himself socially and financially, although on the evidence, the Applicant is a hard-working person who is likely to be able to find some paid work.

118.    This consideration, particularly that part of it which relates to the loss of the Applicant’s family and his recognition that they will be emotionally affected by his removal from Australia, is a consideration of significant weight, in the Tribunal’s opinion, which weight is very strongly in the Applicant’s favour.

Impact on victims

119.    Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

120.    There is little direct evidence concerning the impact on victims, particularly in relation to the wife who in her written material to the Tribunal, makes no mention of the Applicant’s violent conduct in the past nor do the two sons, D and J. The oral evidence of the wife does not add relevantly to this consideration.

121.    However, the Respondent accepts that there is evidence that indicates there would be some adverse impact on D and J should the Applicant be returned to Samoa or New Zealand. The Respondent also accepts the evidence which indicates that the Applicant’s return would have a significant impact on his immediate family which would, in turn, impact the two minor children. The Respondent accepts that this consideration is likely to weigh in favour of revocation of the visa cancellation.

122.    To the extent that the Minister accepts these factors, the Tribunal likewise accepts that this consideration weighs in favour of revocation.

Links to the Australian community

123.    Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

124.    The Applicant arrived in Australia in 1995 at the age of approximately 28 years and has lived here ever since, apart from a number of trips to his homeland which usually involved family issues. It is of relevance that the Applicant has lived for so long in Australia and further, has contributed both by a good work history and involvement in community and church groups to the Australian community at large. The involvement by the Applicant, apart from sporting and church groups, includes visiting nursing homes and juvenile justice centres and the making of donations to missionary charities.

125.    The evidence indicates, and the Respondent accepts, that returning the Applicant to his home nations would have a significant adverse impact on his immediate family and children, all of whom have an indefinite right to remain in Australia.

126.    Two matters arise which are significant. The Applicant has always been the primary financial supporter for his family and contributed to the care of his children. Since his incarceration and detention, his wife has had financial difficulties and other difficulties dealing with the family without the Applicant’s assistance.

127.    Secondly, one child, an adult male who suffers from severe mental illness and has required hospitalisation in the past, has relied upon his father for assistance. The mother regards this adult child as someone in need of assistance and specifically in need of the presence of the Applicant in his life.

128.    The Applicant maintains, according to the Respondent, strong connections with his extended family, including his in-laws. The Tribunal accepts all these matters and takes them into account, although also recognising that the Applicant commenced offending soon after his arrival in Australia in 1995.

129.    All of these matters, however, taking each into account, lead the Tribunal to conclude that overall, this consideration weighs strongly in the Applicant’s favour and in consideration of the revocation of the cancellation of the mandatory visa.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

130.    There are no business interests relevant in this case.

Conclusion

131.    This application and the facts pertaining to it, have presented the Tribunal with considerable difficulty.

132.    It is apparent that the Applicant’s serious offending, which includes family violence, is particularly serious, unacceptable on any level and concerning because at its heart, it seems to relate to the cultural behaviour of the Applicant. It amounts almost to behaviour that, automatically absent any other compelling considerations, would disentitle the Applicant to the right to a visa to live in Australia.

133.    Upon lengthy contemplation, evaluation of all the evidence and consideration, however, the Tribunal, not without real hesitation, has come to the conclusion that there are manifestly powerful factors which operate, ultimately, to outweigh all those considerations which operate against the Applicant in this case.

134.    Those considerations are powerful and include the devastation, (which the Tribunal uses deliberately), and which the Tribunal considers will occur to the Applicant’s family, and independently to his minor children in all the ways discussed elsewhere in this decision, should the Applicant be removed from Australia. That matter, together with his links to the Australian community, his good work history, and the real likelihood that there will be far better law-abiding conduct in the future by the Applicant discussed elsewhere, lead the Tribunal to conclude that there is another reason, in this matter, to exercise its discretion and revoke the original decision.

Order

135.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 15 June 2022 not to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is revoked.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

..............................[SGD]..........................................

Associate

Dated: 7 September 2022

Date of hearing:	30 August 2022
Applicant:	Mr F P Fuamatu
Solicitors for the Respondent:	Ms G Gutmann, Minter Ellison