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

[2020] AATA 4586

FWRQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4586 (13 November 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5302

Re:FWRQ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:13 November 2020

Place:Sydney

The reviewable decision made on 24 August 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class BW Subclass 856 Employer Nomination Scheme visa, is set aside.

In substitution, it is decided that the decision to cancel the applicant’s Class BW Subclass 856 Employer Nomination Scheme visa made 6 February 2019, is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – where offending very serious – where there is a low risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – non-refoulement obligations – impediments to removal – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

Family Law Act 1975 (Cth)

CASES

Jal v Minister for Immigration and Border Protection [2016] AATA 789

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – 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

The Hon. John Pascoe AC CVO, Deputy President

13 November 2020

BACKGROUND

1. The applicant is a 26-year-old Fijian citizen. The applicant arrived in Australia in 2008 at the age of 13.

2. On 27 April 2018, the applicant was convicted at the Downing Centre District Court of sexual intercourse without consent (domestic violence) for which he was sentenced to 40 months imprisonment, and an offence of assault occasioning actual bodily harm (domestic violence) was also taken into account. The incident which resulted in these convictions occurred on 13 May 2016 when the applicant was 21 years old, and the victim was the applicant’s then de facto partner.

3. As a result of these convictions, the applicant has a ‘substantial criminal record’ of over 12 months of imprisonment and does not pass the character test pursuant to section 501(7)(d) and section 501(6)(a) of the Migration Act 1958 (Cth) (the Act). 

4. On 6 February 2019, when the applicant was serving a full-time custodial sentence, his visa was mandatorily cancelled under section 501(3A) of the Act.

5. On 29 February 2019, the applicant sought revocation of the mandatory cancellation decision and provided submissions in support of this.

6. On 24 August 2020, the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the delegate) made the non-revocation decision refusing to revoke the earlier cancellation decision of the applicant’s Class BW Subclass 856 Employer Nomination Scheme visa (the visa). The applicant was notified of the non-revocation decision on the same day.

7. On 1 September 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision.

   LEGISLATIVE FRAMEWORK

8. As both parties agreed that the applicant does not pass the character test set out in the Act, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.

9. Accordingly, the issue before the Tribunal is whether, having regard to Direction No. 79 – 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 (Direction 79), there is another reason why the mandatory cancellation decision under review should be set aside.

10. There are a number of relevant principles contained in paragraph 6.3 of Direction 79 that I have considered, which provide the framework within which the task of exercising the discretion is to be approached:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no

    (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.

11. Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.

12. Those primary considerations pursuant to Part C of Direction 79 are as follows:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

13. Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:

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

    (b)international non-refoulement obligations;

    (c)extent of impediments to the applicant if removed from Australia;

    (d)impact on Australian business interests; and

    (e)impact on victims.

    THE ISSUES

14. The applicant does not pass the character test defined in section 501(6)(a) of the Act because he has a “substantial criminal record” as defined in section 501(7)(d) of the Act.

15. Accordingly, the sole issue before the Tribunal is whether there is “any other reason” why the decision of the delegate to cancel the applicant’s visa should be revoked.

    THE EVIDENCE

    The applicant’s evidence

16. The applicant said that growing up in Fiji he lived with his parents and completed his primary school education in Fiji. The applicant said that as a citizen of Fiji he had the right of entry to New Zealand but was not able to live there permanently.

17. The applicant moved to Australia with his parents when he was 13 years old and his parents both currently live in Australia and are Australian citizens.

18. The applicant has a brother and sister who live in Fiji. His sister is a medical practitioner and his brother is a manager with a production company. His brother has one child in Fiji and his sister does not currently have any children. The applicant also has uncles and aunts who currently reside in Fiji, along with a number of cousins. The applicant said that although he has regularly visited Fiji since coming to Australia, he is not close to his extended family and is largely estranged after having suffered sexual abuse at the hands of an uncle and a cousin in both Fiji and Australia.

19. The applicant said that he is currently single and identifies as bisexual. He said that he realised he was bisexual at the age of 21, five years ago, when he was living in Australia. The applicant said that prior to his relationship with his former partner he had been in a relationship with a man for a period.

20. The applicant said that he was concerned about the treatment he would receive as a bisexual person in Fiji where the LGBTQIA+ community face more discrimination than in Australia. The applicant said that he came across as effeminate to others, which could also pose a problem for him and may lead to adverse comments and judgements from family and the community in Fiji. He accepted that same-sex relationships were not illegal in Fiji.

21. Under cross-examination, the applicant acknowledged that he had visited Fiji regularly from around 2011 until the time he was imprisoned. There had been some eleven visits to Fiji for varying periods of time, either for family weddings, funerals or holidays. The applicant said that his mother was a guest relations manager with a major hotel group and that this had given him access to holidays at resort hotels in Fiji, rather than living in the Fijian community or visiting his extended family when he visited. 

22. The applicant gave evidence that he had never had a drug or alcohol addiction and that he did not have a history or diagnosis of mental health issues. He said that he had consumed alcohol more than usual whilst on bail.

23. The applicant said he is currently seeing a counsellor in Immigration Detention and said that he had been traumatised by his actions and the consequences of those actions, especially as they had impacted his relationship with his ex-partner. He said he felt great remorse for his past actions and the large impact that his actions had on his ex-partner.

24. Prior to his imprisonment, the applicant had worked in a variety of different occupations and roles in Australia, including in fast food, as a machine operator, a utilities officer and in labouring roles. He had also had a period as a stay at home dad looking after his children. The applicant had started a course of study at TAFE and said that prior to his incarceration in 2018 he was close to getting qualifications as a nurse working in aged care. However, he did not finish this course.

25. Whilst in prison the applicant had been gainfully employed as a leading hand at work involving timber products. The applicant accepted that all of his work skills were transferrable if he were to live in Fiji or Australia.

26. The applicant gave evidence that he had two offers of work if he were to be released into the community, one with a plumbing company in Tamworth and the other with a company in Queensland. He provided evidence of these two offers of employment to the Tribunal.

27. When questioned about his children, the applicant said that he had two sons; the applicant’s eldest son is seven years old and an Australian citizen and his youngest son is six years old and is a New Zealand citizen. Both children are currently living in New Zealand with their biological mother who left Australia in 2018 and has not since returned.

28. The applicant had not had contact with his children since March 2018. He said he had not had contact with the children whilst he was in jail, that he did not currently play any significant parental role and he felt his situation, particularly the Apprehended Violence Order (AVO) in place with the children’s mother, basically precluded any contact.

29. The applicant said that his mother is currently in contact with the children. The applicant gave evidence that he wanted to re-establish his relationship with the children and take steps to allow the children to return to Australia so he can act as a parental figure.

30. The applicant said that he had been with his former partner for approximately four years before the incident in May 2016 which lead to his imprisonment. At the time the incident occurred, the applicant and his former partner were not living together and when questioned as to whether there was an AVO in existence at the time of the incident against him, he said that there was not one against him but rather that he had an AVO against his former partner. The Tribunal was directed to the Police statement of 14 May 2016, which states in support of the applicant’s version of events:

    There is currently an enforceable apprehended domestic violence order in place between the victim and the accused, identifying the accused to be the protected person and the victim as the person named.

31. The applicant accepted his conviction of sexual assault and that the incident that took place on 14 May 2016 was humiliating and painful for his former partner. At the hearing, the applicant expressed very considerable remorse for his actions. He said he had consumed more alcohol than would normally be the case on that occasion, but he accepted his conviction and said that he regretted his actions against his former partner.

32. The applicant was convicted of sexual intercourse without consent (domestic violence) and assault occasioning actual bodily harm (DV) and was subsequently sentenced to a term of 40 months imprisonment. The applicant gave evidence that he had never been convicted of a criminal offence prior to this incident.

33. He was classified as a low risk offender and had spent his prison term at a minimum-security facility where he said he was a trusted inmate and had been able to participate in community projects outside of the prison facility.

34. Under cross-examination, the applicant denied breaches of his parole conditions after he had been charged in relation to the incident on 14 May 2016, but acknowledged that he had received a number of fines in relation to alcohol and driving whilst he was on bail and that in April 2017 he had breached an AVO in place to protect his former partner by going to her home to collect a number of items.

35. The applicant said he saw himself as Australian, had spent his formative years in Australia and had strong links with the Fijian community in Australia, not in Fiji.

36. The applicant drew the Tribunal’s attention to the support he had from the church community. There were submitted a large number of reference letters of support from various members of that church community in Australia. He said that when he was living in the community, he had also volunteered for a women’s refuge.

37. The applicant gave evidence that whilst his mother is currently employed and is in relatively good health despite suffering from severe asthma, he was her only child in Australia, and he intends to provide ongoing support for her as she grows older.

    The applicant’s mother’s evidence

38. The applicant’s mother also gave evidence at the hearing that the applicant is her only child living in Australia.

39. She confirmed that the applicant had two job offers and that although the jobs were not close to where she lived, she felt that in the future her son would live closer to her and offer her support as she grew older in Australia.

40. The applicant’s mother said that she was separated from the applicant’s father and that she lived at a home in the Southern suburbs of Sydney run by her church, which provided accommodation for women who were homeless or victims of domestic violence.

41. The applicant’s mother gave evidence that she had two brothers in Fiji who had their own children. She visited Fiji regularly to see her family and agreed that if the applicant were to be returned to Fiji, he had family who could assist him.

42. The applicant’s mother said that she kept in touch with the applicant’s children and acted as a go between with the children’s mother in New Zealand. She had visited the children in November 2019 and had spoken to them about three weeks ago. She planned to see the children again once the COVID-19 pandemic had abated and she was able to travel to New Zealand.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community

43. Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s conduct to date, as well as the risk to the Australian community if he were to commit further offences or engage in other serious conduct.

    Nature and seriousness of the applicant’s conduct

44. There is no doubt that the applicant’s crime was of a very serious nature and resulted in significant pain, debasement and humiliation to the victim who was his former partner.

45. Although the applicant’s partner at the time said that he was not guilty of rape to the police after the incident, he did commit a serious violent assault which falls within the category of serious sexual assault against a woman. He was also found to have punched the victim during this incident and this was considered by the District Court when sentencing the applicant. Under Direction 79 clause 13.1.1(1)(a), the Tribunal must regard the applicant’s conviction of sexual intercourse without consent (domestic violence) and assault occasioning actual bodily harm (DV) as very serious offences, particularly so as they were crimes of a violent nature against a woman: clause 13.1.1(1)(b) of Direction 79.

46. It is also relevant that the applicant received what can only be considered a lengthy custodial sentence, even after a discount of 15% because of an early guilty plea. The length of the applicant’s custodial sentence reflects the objective seriousness of the applicant’s offending, particularly as imprisonment is a penalty of last resort in sentencing: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24].

47. I note that the sentencing judge made the following comments in relation to the applicant’s offending:

    The fact that the offender designed such a painful manner by which to sexually assault the victim, together with the overall degrading nature of the offence and the consequence humiliation that would have been suffered by the victim, contributes towards the finding that this matter is at the mid-range of objective seriousness.

48. As noted by the sentencing judge, the applicant’s behaviour was motivated by jealousy and anger.

49. It is also necessary for me to take into account any breaches of the applicant’s bail conditions. There was considerable confusion about whether there were in fact breaches of the applicant’s bail conditions, because of a lack of clarity around the police station at which the applicant was required to report. The applicant’s evidence was that he had not breached bail conditions. Although there is considerable confusion as to whether the applicant reported to the wrong police station as reflected in the police comments in documents produced under summons, I find that there were occasions where the applicant appears to have not reported in accordance with his bail conditions, which I have considered in looking at the nature and seriousness of the applicant’s offending conduct.

1. The respondent also noted that the applicant had been charged with a number of driving offences. I consider that these offences, particularly where the applicant drove a motor vehicle after having consumed alcohol, indicate a certain lack of respect for the law and must be viewed with concern.

2. Despite there not having been any frequency to the applicant’s serious offending, a cumulative effect of repeat offending or any reoffending since the applicant has been formally warned by the Department (Direction 79), the nature of the applicant’s criminal conduct and the seriousness of the offences as reflected in the sentence imposed weigh heavily against revocation of the mandatory cancellation decision.

   Likelihood of engaging in further serious conduct

3. In assessing whether the risk to the Australian community is unacceptable, Direction 79 requires the Tribunal to have regard to the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct and the likelihood of the person engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the person reoffending. I note that Direction 79 states that the Australian community has a lower tolerance for risk of future harm as the potential for future harm increases.

4. The evidence clearly points to the fact that the applicant must be considered to be at a low risk of committing further offences. In this regard, the sentencing judge in the District Court, acting Judge Grogin, noted as follows:

   I find that [the applicant’s] age and the fact that he has not been in custody before and his very good prospects of rehabilitation allow me to find special circumstances exist and to therefore vary the usual relationship between the non-parole period and parole period.

5. Furthermore, in the psychologist’s assessment of the applicant before the District Court, the psychologist assessed his risk of recidivism by way of the Static-99R test where he scored one, which places him in a low risk category. The SONAR, the Sex Offenders Need Assessment Rating test, was also conducted on the applicant and he scored two, which also places him in the low risk category. The psychologist relevantly said as follows:

   [The applicant’s] arrest for the current matter and the subsequent legal process has obviously been a confronting experience and he has clearly recognised the magnitude and seriousness of his criminal conduct. [The applicant] demonstrates a prominent fear of being sentenced to a period of imprisonment. I am of the opinion that [the applicant] is genuinely remorseful and contrite and that he would avoid any further criminal conduct of the like.

6. There is evidence that the applicant was of good behaviour whilst in prison and that he has contributed to the welfare of others.

7. Furthermore, there were character references before the Tribunal of the applicant’s good character whilst he was living in the community. Relevantly, the Senior Minister of Every Nation Christian Church in Sydney provided a character reference for the applicant to the District Court. He had known the offender for seven years since he came to Every Nation Church with his mother. In relation to the offence, the Senior Minister wrote as follows:

   I was very shocked to hear about the allegation of sexual assault as it is out of character for the [applicant] we know in our church community. I have had time to talk to him since his court case began and know that he is a changed and remorseful man and I don’t see him getting himself into such a difficult position again.

8. The fact that the applicant was convicted of a number of driving offences whilst on bail weighs against him, but I regard these offences to be of limited weight when considering the likelihood of him engaging in future serious conduct. Whilst the offender had a few driving matters on his record, none were of a violent nature nor similar to his main conviction of sexual assault.

9. The applicant has also expressed considerable remorse and does not have a pattern of violent offending. There is no objective evidence that the applicant has undertaken counselling to deal with any jealousy or anger issues, although I note his evidence at the Tribunal, referred to above, as to him seeing a psychologist whilst in detention.

10. I find that all the evidence, including the applicant’s expressed remorse and contrition, place him at a very low risk of re-offending. However, considered overall, particularly in light of the nature and seriousness of the applicant’s conduct, this primary consideration weighs heavily against revocation of the mandatory cancellation decision.

    Best interests of minor children in Australia

11. The applicant has two sons who are minors, the eldest who is seven and the youngest who is five. The children currently reside in New Zealand with their mother who is a New Zealand citizen, and have resided in New Zealand since December 2018 whilst the applicant has been incarcerated.

12. As the applicant’s two minor children are not currently resident in Australia and Direction 79 requires the Tribunal to consider the ‘best interests of minor children in Australia’, I have therefore dealt with the consideration as to the best interests of the applicant’s children under ‘other considerations’.

    Expectations of the Australian community

13. In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Federal Court of Australia decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to the current considerations in Direction 79.

14. The applicant has been convicted of sexual assault against his former partner in a domestic context. The community has very low tolerance for violence against women and for crimes of a sexual nature. Having regard to the provisions of paragraph 6.3(5) and (7) of Direction 79, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.

15. There is no doubt that the Australian community would not expect that a person convicted of sexual assault would be permitted to remain in Australia. The impact of sexual violence cannot be downplayed. It has extremely harmful effects on its victims, specifically the applicant’s ex-partner.

16. Given the nature of the offences, I give substantial weight to this consideration which weighs in favour of non-revocation of the delegate’s decision.

    OTHER CONSIDERATIONS

    Strength, nature and duration of ties to the Australian community

17. The applicant arrived in Australia at the age of 13, completed his secondary education in Australia and regards himself as Australian. He said that he had ties to the Fijian community and to a Fijian church in Australia, but he did not have similar ties in Fiji.

18. The applicant’s offences occurred some eight years after he arrived in Australia and there is no evidence of any previous offending. The Australian community’s tolerance for the applicant’s offending is likely higher as the applicant had been residing in Australia for a period of time prior to committing an offence, rather than arriving and shortly after committing the offence.

19. The evidence shows that the applicant has worked at a fast food outlet, as a utility officer at a mine in Queensland and as a labourer at a factory/warehouse since leaving school and has sought to obtain further qualifications which would provide him additional skills and open up new avenues of employment in Australia. There is also evidence before the Tribunal that the applicant has offers of employment and accommodation if he is released into the community in Australia.

20. Furthermore, the applicant provided to the Tribunal a letter from Corrective Services Industries dated 17 July 2020, evidencing work experience as general hand and leading hand (total 13 months) and VET programs awarded in May 2018, April 2020 and July 2020 in Contribute to the Health and Safety of Others, Statement of Attainment Cleaning Operations and Statement of Attainment Food Safety, respectively.

21. I accept the applicant’s evidence that he is an active member of his church group and that he has made a contribution to the community as a volunteer at a women’s refuge centre, particularly as evidenced by the range of reference letters by individuals in the church community. I also accept the evidence that the applicant is very integrated with the local Fijian community in Australia, which is also supported by oral evidence at the hearing and the reference letters provided in support of the applicant. I note that a number of members of his church have been prepared to provide him with character references and I give some weight to those references which were not challenged by the respondent except in so far as many of these letters gave no indication of whether the person providing the character reference was aware of the nature of the applicant’s criminal offending. It is possible the referees were aware of the offending, however, the Senior Minister did state in his letter to the District Court in relation to the applicant’s criminal proceedings that he was aware of the applicant’s offending.

22. The applicant claims to have four uncles and aunties living in Australia, although no character statements were received regarding the nature or closeness of these ties and if they would be adversely affected by the applicant not remaining in Australia.

23. Although the applicant’s children are not currently residing in Australia, it is relevant to this consideration that one of the children is an Australian citizen and that there may be legal consequences for the applicant in terms of family law rights if he were to be returned to Fiji, especially as neither of his children are citizens of that country and may have difficulties living and integrating into the community there.

24. The applicant’s parents both reside in Australia, although there is no evidence that either of them relies on the applicant for financial or emotional support. Both parents are, however, Australian citizens and the applicant’s mother gave evidence that she did expect that her son would live closer to her and provide support for her as she grew older, and that she would be adversely affected if the applicant is not allowed to remain in Australia.

25. I give this consideration moderate to substantial weight in favour of the revocation of the delegate’s decision to cancel the applicant’s visa.

    Best interests of applicant’s minor children

26. The applicant has two sons who are minors, his eldest who is seven and youngest who is five, who currently reside in New Zealand with their mother. The children have resided in New Zealand since December 2018 whilst the applicant has been incarcerated.

27. The evidence in regard to the applicant’s children is somewhat clouded by the breakdown of his relationship with the children’s mother and his offences against her, together with the fact that one of the children is an Australian citizen and the other is a New Zealand citizen.

28. The applicant gave evidence that he had spent time as a full-time father caring for his children and it would appear from the evidence before the Tribunal that he was a supportive father prior to his incarceration. In this regard, I note in particular the remarks of the applicant’s mother to the District Court in 2018 that the applicant really loves his children, the Senior Minister who wrote a letter for the District Court observing that the applicant would bring his children to church and who wrote that the offender is a good father and the sentencing judge in 2018 who stated the following: “there is little chance of [the applicant] reuniting with the victim, however he will continue to support the children financially”.

29. The applicant gave evidence that he had not sought to make contact with his children because of his circumstances, namely being in prison and his concern about the effect of the AVO in place against him for the protection of the children’s mother. The applicant’s mother gave evidence, which I accept, that she has kept in touch with the children and that she felt that it may be possible for the applicant to re-establish a relationship with them in the future, particularly if the children are able to return to Australia to live with their father.

30. The applicant raised the possibility of legal proceedings in relation to ongoing care and custody arrangements for the children. This is relevant as one of the children is an Australian citizen who was previously residing in Australia and whom the applicant says was removed from this country without his consent.

31. In considering the best interests of the children, I am also mindful of the fact that the sexual assault upon the applicant’s former partner, during what may colloquially be regarded as a “threesome”, took place whilst the children were asleep in the house. It is of concern that the activity, which involved bringing a stranger into the house late at night and whilst the children were asleep, was arranged by the children’s mother who had contacted a third party via the internet and who had asked the applicant, who was not encouraging of the activity, to participate. This may be a relevant factor in any future family law proceedings. It is also of concern in considering the best interests of the children that the children, one of whom is an Australian citizen, may have been removed to New Zealand without the applicant’s consent.

32. There is no evidence that the applicant would pose any threat to his children. In fact, the evidence, although limited, indicates that he has been a responsible and caring parent. Although he may have a right of entry to New Zealand if he was returned to Fiji, this may further complicate any rights he would have under the Family Law Act 1975 (Cth) in Australia in relation to future contact and responsibility for the children.

33. It is well established that it is in the best interests of children to have a relationship with both of their parents if this can safely be achieved. I am strongly of the opinion that it is in the interests of the applicant’s eldest son, who is an Australian citizen, that the applicant is able to live in Australia. Although the child is only seven years old, he has an ongoing right to live in Australia and it is clearly in the child’s best interests if his father resides in Australia and is able to access the family law system in this country, especially if there were questions as to whether or not the mother was properly caring for the children or wished to relocate to a third country. I note that neither child is a citizen of Fiji, have ever lived in that country or have any familiarity with it.

34. The long hiatus where the applicant has not had contact with his children since 2018 and the nature of his offending conduct is of concern and weighs negatively against the applicant in relation to the continuing best interests of his minor children. However, it was clear from the applicant’s evidence that he would like to pursue this relationship in the future. I also consider it to be a relevant factor that the children are young and under the appropriate circumstances should be able to re-establish a positive relationship with their father.

35. I consider this factor weighs moderately to significantly in favour of the revocation of the delegate’s decision.

    Impediments to removal

36. In considering the impediments the applicant might face if he were removed from Australia, the Tribunal must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards.

37. I accept the applicant’s evidence that he has had no interactions with his extended family in Fiji and the evidence that he was a victim of sexual abuse from members of his extended family both in Australia and in Fiji. There was evidence from the applicant’s mother that he might receive some support from his family in Fiji, but there was no evidence as to what that support would entail.

38. It is, however, likely that the applicant’s work skills would be readily transferrable to Fiji and he should have limited cultural and/or language difficulties if he were to return to live in Fiji. The applicant’s regular visits to Fiji, although noting that he says most of his time is spent in resorts there, indicates a level of comfort with being in Fiji and some familiarity with that country.

39. There is no evidence that the applicant has any particular health conditions that would weigh in favour of him remaining in Australia. Sentencing records refer to him as not meeting the “full criteria of a post-traumatic stress disorder”. The applicant is also a 26-year-old single man, which would likely make his relocation to Fiji easier.  

40. I have previously dealt with the fact that the applicant’s children do not currently reside in Australia and one of his sons is an Australian citizen. The applicant’s capacity to access the Australian legal system in relation to his children may be further complicated if he were returned to Fiji. There would also be emotional hardship arising from the applicant’s separation from his parents who reside in Australia.

41. I accept the applicant’s evidence that he is bisexual and that he presents as effeminate and therefore may face a higher level of societal discrimination in Fiji than he is likely to face in Australia. This may in turn affect his capacity to readily integrate into Fijian society and involve some level of societal discrimination in his work and social life. Discrimination and stigma based on sexual orientation was submitted to be present in Fiji, and this is supported by the country information on Fiji provided by the respondent.

42. I give this consideration slight to medium weight in favour of revocation of the delegate’s decision to cancel the applicant’s visa.

    Non-refoulement obligations

43. Having regard to the decision of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, the Tribunal is required to turn its mind to the applicant’s claims to fear harm if returned to Fiji. The applicant claims to fear harm if he is returned to Fiji because of his bisexuality and his effeminacy. He gave evidence that members of the LGBTQIA+ community in Fiji faced discrimination and that the Fijian community did not accept them. I accept the applicant is bisexual, and there is objective evidence before the Tribunal that he discussed that he identified as bisexual with his psychologist in December 2017.

44. In his application for review, the applicant firstly claims that he will be “in danger in the Fiji community, as homosexuality and the LGBTQQIP2SAA community is not accepted, and is also illegal within the eyes of the Fiji government”.  When cross-examined about the issues he believes he would face due to his sexuality if he returned to Fiji, the applicant said he fears discrimination and discomfort from people in the community and family members in Fiji judging him based on his sexuality.

45. Whilst the applicant provided information on discrimination he knew about as a result of his friend’s experiences, there was no objective evidence that this claim would engage Australia’s non-refoulement or international law obligations. Rather, the country information provided to the Tribunal indicated that same-sex relationships are legal in Fiji and that although there may be a low risk of discrimination within society, there was no evidence that there was any risk of serious or significant harm.

46. In the Fijian LGBTQIA+ Country information provided by the respondent which I have considered, the 'Common Claims. Fiji. April 2020 (PDF version)', COISS, Country of Origin Information Services Section (COISS) report dated 6 April 2020 relevantly states at pages seven and eight as follows:

    Same-sex sexual activity was decriminalised in 2010, and the Constitution bans discrimination based on sexual orientation and gender identity or expression.80 Same-sex marriage is not legal81 and in January 2016 Prime Minister Bainimarama voiced strong opposition to its introduction.82 Following these remarks, the Police Commissioner assured the LGBTI community that police would protect it in line with the bill of rights in the Constitution.83 In May 2016 the Police Commissioner offered to meet the LGBTI community, a contrast to his predecessors.84 After transgender people raised concerns of ill-treatment at police stations, in November 2018 the Acting Police Commissioner said police would liaise with them and start training police on how to treat LGBTI people.85 Employment relations law also prohibits discrimination in employment based on sexual orientation. There are, however, no laws specifically prohibiting discrimination against LGBTI persons in other areas. The Fiji Human Rights and Anti-Discrimination Commission reported complaints of discrimination against LGBTI persons in such areas as employment, housing, or access to health care.86 In 2017 it was reported that LGBTI persons faced a low level of official discrimination.87

    LGBTI people in Fiji are finding a greater level of acceptance in Fiji, but remain subject to a moderate level of societal discrimination. Due to conservative social mores, discrimination and violence persist.88 The Drodrolagi Movement, which represents Fiji’s LGBTI community, has reported that LGBTI people face issues in securing employment, forcing them to work in informal sectors.89 While there is some societal discrimination against persons based on sexual orientation and gender identity, including bullying of LGBTI students in schools, there is no systemic discrimination. In addition, although same-sex sexual conduct is objectionable to some with deeply held religious beliefs, general attitudes toward LGBTI people become more accepting.90 This level of acceptance is, however, still limited.91

1. The applicant also claimed that he did not feel comfortable with Fijians and Fijian Indians in particular. He also referred to his sexual abuse that occurred within his family in Fiji and the fact that no one believed him or was prepared to acknowledge or act on his complaints of sexual abuse because of family reputation. It is also of note that the most recent allegation of sexual abuse by the applicant occurred whilst he was in Australia, although at the hands of a Fijian relative, and that if he returned to Fiji he would not have to relocate proximate to this extended family.

2. I note that the applicant is also able to apply for a protection visa as section 501E(2) of the Act would permit this, and the applicant would not be prevented from doing so due to section 48A of the Act.

3. On the basis of the evidence before the Tribunal as to the applicant’s risk of harm, I am of the opinion that the applicant does not meet the requirements to engage Australia’s non-refoulement obligations, even though he may face more low-level discrimination in Fiji than might be the case in Australia.

4. Insofar as it is relevant, I give neutral weight to this consideration in favour of revocation.

   CONCLUSION

5. The applicant is guilty of a serious and violent crime against a woman. He was sentenced to a lengthy term of imprisonment. This cannot be discounted in any way and this primary consideration, alongside the expectations of the Australian community, weighs heavily against revocation of the delegate’s decision to cancel the applicant’s visa.

6. The applicant’s crime must be balanced against a range of other considerations discussed above. The applicant arrived in Australia at the age of 13, has no history of repeated serious criminal behaviour and is at very low risk of re-offending. He has been on all the evidence a model prisoner and has demonstrated considerable remorse in respect of his offending.

7. The applicant has strong ties to Australia and although he would have no major impediments to living in Fiji insofar as language, work, age or culture is concerned, there is likely going to be detriment to his parents who are Australian citizens and to his children, if he is no longer able to hold his Australian visa. This is particularly the case with his eldest son who is an Australian citizen. He is also likely to face a greater degree of societal discrimination in Fiji because of his sexuality and effeminacy.

8. The applicant has always been gainfully employed in Australia and identifies as Australian. He has strong ties to the community and has offers of employment and accommodation if he is released into the community.

9. In light of all these factors, it is a very difficult and finely balanced decision given the applicant’s serious crime and resultant sentence. However, on balance, I am of the opinion that the weight of the evidence overall is in favour of revocation of the delegate’s decision.

   DECISION

10. I am therefore satisfied that it is the correct or preferable decision that the reviewable decision made on 24 August 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class BW Subclass 856 Employer Nomination Scheme visa, is set aside.

11. In substitution, a decision to cancel the applicant’s Class BW Subclass 856 Employer Nomination Scheme visa made 6 February 2019, is revoked.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

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

Associate

Dated: 13 November 2020

Date of hearing:	2 November 2020
Applicant:	In person (by video conference)
Solicitors for the Respondent:	Ms H Dejean, Australian Government Solicitor