Jikoivavalagi and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2098

Jikoivavalagi and Minister for Immigration and Border Protection (Migration) [2017] AATA 2098 (7 November 2017)

Division:GENERAL DIVISION

File Number:           2017/5109

Re:Temo Jikoivavalagi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:7 November 2017

Place:Sydney

The Tribunal affirms the decision under review made by the delegate on 17 August 2017 not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

............................[sgd]............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – visa cancellation – decision not to revoke cancellation – transitional visa – character test – whether the applicant passes the character test – substantial criminal record – imprisonment for 12 months or more - protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations -  decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

7 November 2017

The reviewable decision

1. On 17 August 2017, a delegate of the Minister for Immigration and Border Protection (the Respondent) decided not to revoke the cancellation of Mr Jikoivavalagi’s (the Applicant) Class BF Transitional (Permanent) visa.

2. The applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The letter notifying the Applicant of the visa cancellation was dated 15 November 2016. The Applicant applied to have that decision revoked. 

3. The applicant has sought review of the delegate’s decision. The delegate’s decision not to revoke the cancellation of the visa was made pursuant to s 501CA(4) of the Act.

   The issue for determination

4. The Tribunal may revoke the cancellation decision if satisfied that the applicant passes the character test or “that there is another reason why the original decision should be revoked”.[1]

   [1] See s 501CA(4)(b) of the Act.

5. The applicant does not dispute that he does not pass the character test. He has a substantial criminal record arising from having been sentenced to terms of imprisonment totalling more than 12 months (ss 501(6)(a) and 501(7)(c) of the Act).

6. Therefore, the issue for the Tribunal to decide is whether there is another reason why the original decision to cancel the visa should be revoked.

   Direction 65

7. When determining whether there is another reason why the cancellation decision should be revoked, the Tribunal must take into account considerations in Part C of Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).[2]

   [2] See s 499 of the Act and cl 7(1)(b) of Direction 65.

8. Relevantly, Direction 65 states that the “primary considerations” are:

   ·the protection of the Australian community (cl 13.1);

   ·the best interests of any minor children (cl 13.2), and

   ·the expectations of the Australian community (cl 13.3).

9. The Tribunal must also determine whether any of the “other considerations” set out in cl 14 of Direction 65 are relevant and if so, take them into account.

10. Direction 65 sets out the objectives of the Act and of the direction itself, principles to take into account, guidance about exercising the discretion, and the weight to be given to them. Primary considerations should generally be given greater weight than the other considerations.[3] One or more primary consideration may outweigh other primary considerations.[4]

    [3] Direction 65, cl 8(4)

    [4] Direction 65, cl 8(5)

    Background

11. The applicant is a citizen of Fiji. He was born in 1983 and is currently 34 years old. He arrived in Australia when he was four years old and has resided here ever since.

12. He has the following criminal record: 

Court date	Offence	Court result
8 June 2016	Assault occasioning actual bodily harm-t2	13.     Imprisonment: 6 months commencing 2/3/2016 concluding 1/9/2016
Assault occasioning actual bodily harm-t2	14.     Imprisonment: 6 months commencing 2/7/2016 concluding 1/1/2016
Not make ticket available for inspection	S10a conviction with no other penalty
Use intimidation/violence to unlawfully influence person	15.     Imprisonment: 6 months 16.     commencing 2/7/2016 concluding 1/1/2017
Common assault-t-2   Assault occasioning actual bodily harm – t2	imprisonment: 4 months commencing 2/3/2016 concluding 1/7/2016 bond s9 : 3 years
Affray-t1	17.     imprisonment: 18 months commencing 2/7/2016 18.     Non-parole period of 10 mths (eligible for parole 1/5/2017)
18 February 2016	Drive with middle range Prescribed Concentration of alcohol – 1st off	Fine: $700 disqualification – driver: 8 months
14 June 2013	6(1) commit public nuisance (on 1/6/2013)	No conviction recorded Fined: $600
20 April 2012	Resist officer in execution of duty – t2	Imprisonment: 6 months Commencing 27/2/2012 Concluding 26/8/2012
Assault occasioning actual body harm – t2	Imprisonment: 10 months Commencing: 27/2/2012
28 Aug 2008	Robbery in company	imprisonment: 4 years Commencing 28/2/2008
8 Dec 2006	19.     Enter inclosed land not presc premises w/o lawful excuse	20.     fine: $300 costs – court: $67
Destroy or damage property	21.     fine: $500 costs – court: $67
31 July 2003	Common assault –t2	imprisonment: 6 months Commencing 31/7/2003
19 May 2003	Destroy or damage property <=$2000 – t2	fine: $300 costs – court : $59
Common assault-t2	imprisonment : 3 months        commencing 19/5/2003
Common assault-t2	imprisonment : 3 months        commencing 19/5/2003
24 April 2003	Aggravated robbery with Wounding/gbh-si	22.     imprisonment: 3 years and 9 months commence 19/1/2003 non parole period: 2 years commencing 18/1/2005
Use etc offensive weapon to prevent lawful detention etc – t1	Imprisonment 3 years and 3 months commence 19/7/2003
Robber armed with offensive weapon – si (2 attempted)	23.     imprisonment: 4 years and 9 months commence 19/4/2004 non parole period: 2 years and 3 months conclude 18/7/2006
28 February 2003	Be carried in conveyance taken w/o consent of owner – t2	Fic (taken into account on form 1) (in proceedings on 24/4/2003)
24 Sept 2002	24.     Resist or hinder police officer in the execution of duty (first instance warrant)	fine: $300  costs – court $59
25.     Destroy or damage property (first instance warrant)	bond s 9 : 2 years supv prob service attend such drug and alcohol programs as required. Costs – court: $59 compensation: $1,995

Consideration

Protection of the Australian community

1. Clause 13.1 of Direction 65 sets out the matters to be considered in relation to the protection of the Australian community.

2. Clause 13.1(1) provides that:

   When considering protection of the Australian community, decision-makers should have regard to the principal 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, respect important institutions, and will not cause or threaten harm to individuals or the Australian community….

3. Clause 13.1(2) sets out to further considerations:

   (a)the nature and seriousness of the non-citizens conduct to date; and

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

4. Clauses 13.1.1(1) and (2) set out factors to be taken into account in relation to each of those considerations.

5. Following is the Tribunal’s consideration of the nature and seriousness of the Applicant’s conduct to date. 

6. It is apparent from the Applicant’s criminal record that he has a history of committing violent offences which are viewed very seriously.  He has committed crimes against government officials, that is, police in the performance of their duties, which are serious.  He has been sentenced to 14 terms of imprisonment, as set out above.  The lengths of the sentences reflect the seriousness with which the courts viewed the offences.  The Tribunal has taken into account the sentencing remarks made by judges and magistrates on 8 June 2016, 20 April 2012, 28 August 2008 and 23 April 2003.

7. The Tribunal takes into account that there were periods when there were no or fewer offences, but bears in mind the periods when the Applicant was in prison and not in the community.

8. The magistrate commented in the sentencing remarks made on 8 June 2016 in relation to the offences committed in September 2015, January 2016 until March 2016, that the Applicant’s representative had said there was an escalation in the offences. The Applicant’s most serious offences were committed in around 2003 and 2008.

9. The cumulative effect of the Applicant’s repeated offending is very serious. In addition to the actual offending and the physical and psychological damage to the victims, the consequence has been the costs to the community of the courts, the police, corrective services and other services provided to the Applicant.  

10. In a letter dated 9 May 2007, an officer of the then Department of Immigration and Citizenship advised the Applicant that the Minister had decided not to cancel his visa under s 501(2) of the Act but warned:

    …that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of your visa may be considered again.  Consideration may also be given to refusing any future visa applications. Please note that  disregarding this warning may weigh heavily against you if the Minister or a delegate considers your case in the future. A copy of section 501 of the act is attached for your information.

    …

    The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf it comes within the scope of sub section 501(6) could result in the consideration of the cancellation of your visa under subsection 501(2) of the act. I remind you that the Consequence of these are cancellation under subsection 501(2) of the act include removal from Australia and, in certain cases, bars on re-entering Australia.

    [original emphasis]

11. The Applicant acknowledged receiving the warning letter and the enclosed copy of s 501 of the Act. He also acknowledged that he fully understood that any further convictions for any offences will result in his visa being reconsidered for cancellation.

12. The Applicant reoffended in 2008. 

13. In a letter dated 18 November 2010 an officer of the Department of Immigration and Citizenship wrote to the Applicant advising that The Minister had decided not to cancel his visa and character grounds “on this occasion” however the delegate had decided to give the following formal warning:

    Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future disregard of this warning will weigh heavily against you if your case is reconsidered.

    [original emphasis]

14. On 24 November 2010, the Applicant acknowledged having received that letter, and stated that he understood that he could again be considered for refusal or cancellation of any visa granted to him if further information of relevance came to the attention of the Department at any time in the future and that if that happened, his past conduct in previous relevant information could also be reconsidered.

15. The Applicant reoffended on about 27 February 2012.

16. On 21 August 2012, a delegate of the Minister wrote to the Applicant advising that the Applicant did not pass a character test as defined in s 501(6)(a) and s 501(7)(c) of the Act and had decided to exercise the discretion to cancel his visa.

17. The applicant successfully sought review of that decision in this Tribunal and his visa was not cancelled. The decision was dated 12 November 2012.

18. The Applicant reoffended in 2013.

19. Following that offence, the Department considered cancelling his visa pursuant to s 501A of the Act. Yet again, the decision was made not to cancel is visa. The letter notifying the Applicant of that decision was dated 7 November 2014. The letter included the following:

    Please note:  this decision does not mean that your case cannot be considered again under the character provisions of section 501 in the event of further criminal offending by you.

    [original emphasis]

20. The evidence does not indicate that the Applicant acknowledged receiving that letter.  The applicant reoffended in September 2015, January 2016 and March 2016.

21. The Tribunal finds that the Applicant has been repeatedly warned about the consequences of his criminal offending for his migration status since 2007, as set out above. He has been very well aware of the consequences of continuing criminal offending for his migration status since 2007.  He has proceeded to reoffend as set out above.

22. Taking into account the principles and factors specified in Direction 65, the Tribunal finds that the nature and seriousness of the Applicant’s conduct weighs very heavily in favour of not revoking cancellation of the visa.

23. Following is the Tribunal’s consideration of the risk to the Australian community should the Applicant commit further offences, taking into account the relevant principles and factors set out in Direction 65, including cls 13(1) and 13.1.2 as well as the guidance and principles of general application which it sets out.

24. The Applicant’s history of criminal offending demonstrates the nature of the harm to individuals or the Australian community should he engage in further criminal conduct.

25. Following is a summary of the Applicant’s most serious offences based on the available police facts and sentencing remarks of the judge or magistrate.

    ·On 8 June 2016, the Applicant had pleaded guilty to offences that occurred in September 2015, and January and March 2016. The Applicant was affected by either alcohol and/or the drug ice. The offences involved random acts of violence against individuals.  They were serious offences of violence, particularly those committed on a train in March 2016 where the people on the train would have been terrified.  The Applicant was on bail for the January 2016 offence at that time.

    ·The Applicant attacked two people on the train. The Applicant knocked the mobile telephone out of victim one’s hand.  When victim one questioned what the applicant was doing the applicant got to his feet, grabbed victim one, pinned him against the carriage wall, and punched him in the face a number of times with his clenched right fist. He slammed victim one into a chair and proceeded to knee him in the stomach with his right knee and strike him in the forehead with his right elbow.  He then grabbed victim one by his clothing and threw him across the carriage where he pinned him down and slammed his head into the carriage chair twice.  He jumped on top of the victim one and kneed him once in the head with his right knee, and then punched him in the head twice with his clenched right fist, and then pushed him onto the carriage floor where he stomped on his body four times as the victim lay defenceless on the carriage floor. Members of the public ran from the upper and lower decks of the carriage. The Applicant’s brother tried to physically restrain the Applicant as he continued to assault victim one. The Applicant struggled to remove his brother’s hands from around his waist. When victim one asked for his mobile phone the Applicant told him not say anything to anyone and not tell the police a number of times. He then handed back the mobile telephone.  Victim 1 suffered a large egg shaped lump on the left side of his forehead, swelling/redness and bruising to his right cheek bone and swelling and scratches to his neck and back.

    ·After leaving that part of the carriage where that offence was committed, the Applicant returned and approached a middle aged Sydney Trains driver who was dressed in his uniform.  The Applicant asked victim 2 if he was going to say anything.  Victim 2 said that he had not seen anything.  The Applicant grabbed victim 2 around the throat with both hands and squeezed very tightly, making it difficult for him to breath.  While holding victim two’s throat, the Applicant picked him up off the seats and threw him over the carriage chair onto the floor.  The Applicant’s brother physically restrained him and placed himself between victim 2 and the Applicant who again asked if victim two was going to say anything. Victim 2 said he would not, picked up his bag and walked. The Applicant followed him and again asked the same question got the same response.  The Applicant’s brother intervened. 

    ·The assault occasioning actual bodily harm offence on 15 January 2016 involved the Applicant picking up a schooner glass that was not his, being told to go, and then punching the victim in the mouth. 

    ·On 12 September 2015, having been removed from a bar because of his conduct, the Applicant returned.  A security guard refused him re-entry and escorted him to the exit. As they were walking, the Applicant aggressively threatened to smash the guard and swung his left fist towards the left side of the guard’s face causing the guard immediate pain to the left jaw. The security guard was not seriously injured and was able to return to his duty without medical attention. The charge was common assault.

    ·The Applicant pleaded guilty to assault occasioning actual bodily harm to a person and was sentenced on 20 April 2012.  The victim was a complete stranger with whom the Applicant had some argument.  The level of violence inflicted upon the person was completely unacceptable and could have led to far more serious injuries than in fact eventuated.   When the police came, he resisted police which was at the higher end of the range for that offence.  The police had to use “various weaponry”, including tazers on two occasions, in order to subdue the Applicant, who was extremely intoxicated. The Applicant was on parole when he offended, although until then the pre-sentence report suggested that he was doing quite well until he quit his job.  He had completed various programs and had been doing his best to comply with the parole. “This incident, however is an indication that when you drink alcohol and you are not appropriately supervised… You react violently in a situation where it is completely unacceptable for that to happen.”

    ·On 28 August 2008, the applicant was sentenced following his plea of guilty on indictment to one count of robbery in company on 12 May 2007. The robbery occurred in the cubicle of a hotel. Items including a mobile phone, keys, bankcard and some cash were taken. It was an act of violence against a vulnerable member of the public who was doing no more than going about it his lawful duties. Fortunately the victim did not appear to have been badly injured, although punched at least eight times by the co-offender. The Applicant was under the influence of alcohol and cocaine which he started to use after being released from custody in July 2006. He became addicted to cocaine.  He had not planned the offence and did not profit from it, apart from possibly $40. The Applicant was on parole for an offence of armed robbery at the time of the offending. His parole was revoked and he was ordered to serve the balance of parole commencing from 12 March 2007, expiring on 18 January 2009.

    ·On 4 February 2003 the Applicant pleaded guilty to a charge of robbery in company on 22 December 2001. When arrested, the Applicant possessed the victim’s mobile telephone. The offence of malicious wounding committed on the same date was also taken into account on sentence. The Applicant had struck victim 2 over his right eye with a bottle.  The Applicant also entered pleas of guilty to charges of attempted robbery whilst armed with an offensive weapon, namely a screwdriver, committed on 19 January 2003, and the charge on the same date of using an offensive instrument, namely a screwdriver, to prevent his lawful apprehension. The attempted robbery was of a taxi driver, who was vulnerable to attack.  The Applicant threatened to kill him twice while holding the screwdriver.  The Applicant also used the screwdriver to prevent his lawful detention by a police officer. The applicant also requested a charge of being carried in a conveyance taken without the consent of the owner also committed on 19 January 2003 be taken into account on the sentence to be imposed for the offence of attempted armed robbery.  The latter offence related to the theft of a motor vehicle.   At the time of the 2001 offences, the Applicant had no criminal record.  At the time of the January 2003 offences, the Applicant had been dealt with on 24 September 2002 for a charge of resisting a police officer, for which he was fined, and a charge of maliciously destroy or damage property, for which he received a two year bond. He was also on bail for the 2001 charges. The 2003 offences were substantially aggravated by those two circumstances.  There can be little doubt that the major underlying cause of the Applicant’s criminal conduct is his abuse of alcohol.

1. What is the likelihood that the Applicant will engage in further criminal conduct?

2. At the time of sentencing on 24 April 2003, the Applicant was awaiting enrolment in a drug and alcohol lecture program. The Judge thought that then the Applicant would benefit from an extended period of supervision in order to assist him to overcome his alcohol and other problems and maintain strategies to assist in his rehabilitation. The Applicant had a past history of cannabis use and had been consuming alcohol at high levels for some time.

3. When sentenced in 2008, the Applicant’s daughter was 12 months old and his girlfriend was supportive. They lived with his parents. At that time, the Applicant had been free of alcohol and drug use in custody and had resolved to stay that way. The Judge commented that he would need assistance, including access to effective drug and alcohol rehabilitation programs inside prison and on release from custody.

4. When sentenced in 2012, the Applicant’s family supported him. The magistrate commented that the Applicant needed to help himself and not drink alcohol.

5. When sentenced in 2016, the magistrate imposed a three year bond with a condition that the Applicant accept community corrections supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation.

6. The Applicant told the Tribunal that he had broken up with the mother of his daughter in about May 2015 because she was not happy in the relationship and not because he was drinking. He claimed that the ending of the relationship was the reason he resumed drinking alcohol. The psychological report dated 7 June 2016 states that the relationship with the mother of his daughter ended because of his drinking habit.

7. The Tribunal finds, based on a Corrective Service NSW record dated 6 April 2016, that after abstaining from alcohol from 2012 to 2014, the Applicant relapsed because he was associating with certain friends. That record also indicates that the Applicant was ineligible for most rehabilitation services in the community because of his extensive history of violence.  The Alcohol and other drug Residential Rehabilitation Assessment Report dated 3 June 2016 for the court hearing on 8 June 2016, stated that a particular rehabilitation service had advised that it was unable to facilitate an assessment for the Applicant.

8. In addition to alcohol and cocaine, the Applicant has used cannabis and ecstasy.[5]  He told the Tribunal that he started using ice after the breakdown of his relationship in 2014/2015 and because of his work.

   [5] Supplementary T documents, S10, Psychological Report dated 7 June 2016.

9. The Applicant has a pattern of serious violent offending under the influence of alcohol and/or other drugs over a period of 16 years mostly against innocent victims.  He has served periods of imprisonment.  He has had the support of his family in the past and in relation to the application for revocation of the most recent cancellation decision.  At the time of the 2012 Tribunal decision he also had the support of the mother of his daughter.  That relationship has broken down. 

10. The Tribunal takes into account the Applicant’s expressions of regret and remorse for his conduct, that he has completed several courses to improve his skills, and an intensive drug and alcohol treatment program, which he says deals with a range of issues, mainly reoffending and drugs and alcohol.  It has taken into account the Applicant’s claim that he is dealing with his issues in a positive way which will result in good outcomes in the future.  However, given the Applicant’s offending history, the history of notifications from the Department about the possible cancellation of his visa and the 2012 Tribunal decision, the Tribunal considers it highly likely that the Applicant will engage in further criminal conduct.  This consideration weighs heavily against exercising the discretion to revoke the cancellation of the visa.

11. The Tribunal finds that the protection of the Australian community weighs very heavily against exercising the discretion to revoke the cancellation of the visa.

    The best interests of minor children in Australia affected by the decision

12. In his Personal Circumstances Form dated 6 December 2016 (the Personal Circumstances Form) submitted in support of his request to revoke the cancellation, the Applicant listed his daughter as a minor child who may be affected by the visa cancellation. She was born in the middle of 2007.  During the hearing, the Applicant talked about his sister and her husband having three children and his brother and his partner having two children who are two and four, or maybe four and six.  He said that before he was in prison he sometimes looked after them and sometimes he speaks to them when they answer the telephone at his parents’ place where they visit at weekends and play with his daughter.

13. When cross-examined about his brother’s family, the Applicant said that he did not really know them that well, and then said he was close to them but, while knowing the partner’s name, he did not know if she and his brother were still together. The Applicant said that he did not ask about “that stuff”. He did not know where they lived.

14. The Tribunal does not accept that the Applicant has had any significant relationship with any of his nieces or nephews. In the Personal Circumstances Form, he listed the dates of birth of his nieces and nephews: 2008, 2010, 2011, 2013, and 2014.  The Applicant was in custody from 12 May 2007 until 18 December 2010, from 29 January 2012 until 26 August 2012, and then in immigration detention until released after the Tribunal’s 2012 decision, and from 2 March 2016 until 1 May 2017 when he was taken into immigration detention again, where he remains.

15. The Applicant has not had and is unlikely to have in the future, a parental relationship with any of his nieces of nephews.

16. His history of criminal offending, imprisonment, alcohol and drug use, and likely reoffending will have a negative impact on those children.

17. There is not likely to be any effect on any of those children because of separation if he returns to Fiji because he can maintain contact with them by telephone, as he says he has had occasionally at times in the past, or by using digital means.

18. At highest the Applicant has had contact with his nephews and nieces as a member of an extended family including his grandmother, parents, brothers and sister, and his daughter when they have socialised in the past.

19. The Tribunal finds, on balance, that revocation of the cancellation decision is in the best interests of each of his nieces and nephews.  However, the Tribunal gives little weight to this consideration given its finding that the Applicant has not had any significant relationship with any of them.  In making those findings, the Tribunal has taken into account the Applicant’s evidence, and the various statements of his family members.

20. The Applicant’s daughter has lived with her mother since the relationship broke down at least by May 2015. During the sentencing remarks for the 2015 and 2016 offences, the magistrate commented that the Applicant wanted to reconcile with his eight year old daughter, “but there is a lot of work that seems to need to be done before that is going to be possible”.  Those observations are inconsistent with the Applicant’s evidence that he used to look after his daughter before going to prison in 2016. The Applicant told the Tribunal that he had seen her once since going to prison in March 2016 when his father had brought her to see him.  He said that she was going to see him in Villawood but he was moved to Yongah Hill where she was going to see him but then he was moved to Christmas Island. He told the Tribunal that his daughter sometimes goes to his parents’ house where he speaks to her, maybe every fortnight. He does not know if she knows where he is.

21. There are various statements in 2012 and 2013 which talk about his relationship with his daughter. Those statements were made before the breakdown in the Applicant’s relationship with his daughter’s mother. 

22. There is a letter dated 17 June 2017 which has been prepared and written by the Applicant’s mother headed:  “I just want to draft my granddaughter’s letter”. It was a letter supporting the Applicant’s getting his visa back and living in Australia with her and states the following. She does not want her father to go back to Fiji.  She wants her father here in Australia at special moments in her life.  She can see him every day but not if he goes to Fiji. She says that she will go there once a year and will only get to stay there for a month or a few days and then will have to wait for another year until she sees him again, depending on money. She wants a father in her life. She says there are three reasons why he should stay in Australia: He is a very good father to her.  He is very generous. She does not want him to go because it is not fair to her. Once he is in Fiji, he will not come and see her when she grows up. On her wedding day, she wants her dad to walk her down the aisle.

23. There is also a short handwritten letter which the Tribunal accepts was written by the Applicant’s daughter. She said that she wants her father to get his visa back and live in Australia with her. She does not want him to go to Fiji. She wants him here for special moments in her life. 

24. The Tribunal has some concern about whether the Applicant’s daughter’s wishes are those expressed in the two documents.  She is only ten years old now, has seen her father once since he was imprisoned in March 2016, has had limited telephone conversations with him since then, has not lived with him since at least May 2015, and may have been pressured by her grandmother to support the Applicant.  However, given the significance that Direction 65 gives to the consideration of the best interests of minor children, the Tribunal accepts that those are his daughter’s wishes.

25. As a practical matter, the Tribunal finds that the Applicant’s daughter will continue to live with and be cared for by her mother, as has been the case since the relationship breakdown with the Applicant, and during the periods when the Applicant was in custody or immigration detention before that, from 2007. The Tribunal notes that the Applicant, the mother of his daughter and his daughter lived with his parents in 2011 and from about the end of 2012 until the relationship broke down, a period of about three and a half years.

26. The Applicant’s daughter will turn 18 in eight years’ time. The Applicant may play a positive parental role, including providing emotional and financial support for his daughter over the next eight years if he is in the community and working.

27. The Applicant’s past substance abuse and criminal offending has meant that he was in custody or immigration detention from the time of his daughter’s birth until the end of 2010, for about ten months in 2012, and since March 2016.  During those periods he played a much more limited role in her life than if he had been in the community.  The Tribunal has taken into account records of his daughter and her mother visiting the Applicant when he was in custody.  His conduct therefore had a negative impact on the child.

28. Given that the Tribunal finds it highly likely that the Applicant will resume his substance abuse and reoffend in the future, it finds that his future conduct will have a negative impact on his daughter.

29. The Applicant has been separated from his daughter for the periods identified above, including for the past 17 months when he has seen her once and spoken to her on the telephone about every fortnight.  If he returns to Fiji he can communicate with her by telephone or digital means.  The letter written by her grandmother suggests that she may visit him once a year if money permits for a few days or a month.  Separation would not be in his daughter’s best interests.  However, the Tribunal finds that it is likely that he will be returned to custody if he remains in Australia, and therefore be separated from his daughter again even if he remains.

30. Taking into account all the above matters, on balance, the Tribunal finds that revocation of the decision to cancel the visa is in the best interests of the Applicant’s daughter but does not give that consideration much weight.

    Expectations of the Australian Community

31. The Applicant has breached Australian laws while in Australia and there is an unacceptable risk that he will do so again, as discussed above.  The nature of the offences the Applicant has committed and is likely to commit in the future are such that the Australian community would expect that the he should not hold a visa. 

    Other considerations

32. The other considerations specified in cl 14 of Direction 65 that are raised on the evidence in this case are the strength, nature and duration of ties, and the extent of impediments if removed.

    Strength, nature and duration of ties

33. The Applicant has resided in Australia for 30 years since he was four years old. He first offended in 2002 when he had been here for about 15 years.  The Australian community may afford a higher tolerance to his criminal offending in that circumstance.  However, his serious and repeated offending under the influence of alcohol and drugs outweighs that consideration.

34. The applicant has worked in the community at various times.  Some weight is to be given to that matter.  He claims to have helped out at “PCYC” (Police Community Youth Centre), however he provided no details of when or for how long he did that.

35. The Applicant has very strong links with his immediate family of his grandmother, parents, two brothers, and one sister, as well as his five nieces and nephews, aunts and uncles and many cousins. It accepts that there are many Australian citizens among his relatives. The Tribunal has taken into account the letters of support before it but does not accept some of the overly generous assessments of his character. His parents make the point that Australia should not throw him out because his been here so long and all his offending has occurred in this country.  The Tribunal accepts that his immediate family in particular would be upset if he had to leave Australia.  They have and continue to support him despite his offending.

36. The Tribunal has taken into account that the Applicant has helped care for his grandmother and younger brother who suffers from schizophrenia. That was clearly when he was not in custody or immigration detention. It notes that the delegate stated that the applicant’s brother is currently in immigration detention and was receiving medical care through appropriate services pending finalisation of his immigration pathway. There is no more current information about that person before the Tribunal.     

37. The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revoking the decision to cancel the visa.

    Extent of impediments if removed to home country

38. The Tribunal accepts that the Applicant suffers from mental illness for which he takes medication. However the Tribunal does not accept that such medication would not be available to him in Fiji.  It does accept that appropriate counselling and support services would be harder to obtain there than in Australia.

39. The Tribunal accepts that the Applicant does not have any supports in Fiji to assist him with accommodation, work or finance.

40. The Tribunal takes into account that the Applicant has work experience in Australia and has undertaken to increase his skills in recent years as reflected in various certificates in evidence before the Tribunal.

41. Although the Applicant and his family members claimed that he does not know the culture in Fiji, the Tribunal does not accept that there are any substantial language or cultural barriers. He has grown up in a large extended Fijian family in Australia.

42. The Tribunal accepts that the Applicant will suffer significant hardship if he returns to Fiji.

43. The extent of impediments if the Applicant is removed to Fiji weigh in favour of revoking the cancellation of the visa.

    Conclusion

44. Taking into account all the above considerations, the Tribunal finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community substantially outweigh the primary consideration of the best interests of minor children in Australia affected by the decision and the other considerations of strength, nature and duration of ties, and extent of impediments if removed.

45. The Tribunal finds that there is not another reason why the original decision should be revoked. 

46. The Tribunal affirms the decision under review made by the delegate on 17 August 2017 not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..........................[sgd]..............................................

Associate

Dated: 7 November 2017

Date(s) of hearing:	23 October 2017
Applicant:	Via videolink
Solicitors for the Respondent:	Mr W Sharpe and Ms J Strugnell, Minter Ellison