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

Koroinaciwa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 963 (3 May 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1023
Re:Apolosa Koroinaciwa
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:3 May 2024
Place:Sydney

The decision under review is affirmed.
......................[SGD]...............................................
Senior Member A Poljak
Catchwords
MIGRATION – mandatory cancellation of class GD subclass 403 temporary work (international relations) visa under section 501(3A) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A Poljak
6 May 2024

Mr Apolosa Koroinaciwa, the applicant, is a citizen of Fiji. The applicant first arrived in Australia on 6 January 2021. He held a class GD subclass 403 temporary work (international relations) visa (visa).
On 19 June 2023, the applicant was convicted at Blacktown Local Court of drive with high range PCA – 1st off and aggravated dangerous driving occ GBH – PCA – T1. He was sentenced to an aggregate term of 27 months imprisonment and disqualified from driving for three years. A severity appeal was lodged, and on 11 July 2023, the Parramatta District Court confirmed the orders made by the Blacktown Local Court on 19 June 2023.
On 20 July 2023, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation) on the basis that the applicant did not pass the character test.
On 28 July 2023, the applicant made representations to the delegate seeking revocation of the cancellation decision. On 12 February 2024, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's visa. This is the decision under review in these proceedings (decision under review).
Issues
The applicant does not pass the character test by virtue of his sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue for determination is whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act.
Relevant Legislative Provisions
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a full-time custodial sentence of imprisonment.
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).
In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-maker’s exercise of discretion:
(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) 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.
(3) 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.
(4) 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.
(5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 6 guides decision-makers as to the making of the visa cancellation, refusal or revocation decision. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of Direction 99 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should generally be given greater weight than the other considerations: paragraph 7(2).
Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(5)):
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:
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.
Paragraph 8.1(2) of Direction 99 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.
Nature and seriousness of the applicant's conduct
The applicant's offending conduct is viewed very seriously. The circumstances of the offences committed by the applicant are detailed in the sentencing remarks of Magistrate Tang on 19 June 2023 and are summarised as follows:
The applicant was consuming alcohol on Friday, Saturday, Sunday, and Monday and that he made the decision to drive on Tuesday morning with a passenger. The applicant said he felt fine to drive. He was trying to get to work. The applicant's car crossed to the wrong side of the road and was involved in a head-on collision with another car. There were two passengers in that other car, including the victim, who suffered significant injuries, being an open compound fracture to his right-hand ring and little fingers which required surgery and wires to be inserted into his fingers. The victim’s 7-year-old daughter was also in the car and complained of pain to her right shoulder. The applicant's passenger suffered minor laceration to his legs and pain to his left shoulder. It was noted that the applicant was unsteady on his feet and clearly intoxicated and Magistrate Tang did not accept that the applicant was not fully aware he was over the limit, given that the applicant's reading was 0.217, being substantially over the threshold of high-range drink driving.
The seriousness of the applicant’s conduct is reinforced by the sentences imposed. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. It was noted in the sentencing remarks of Magistrate Tang that consideration was made as to whether the applicant's sentence may be served by way of an intensive corrections order, however it was determined that 'having regard to the extreme seriousness of the two offences… I'm satisfied that the risk of [the applicant] re-offending and the protection of the community is better served by way of full-time custody as opposed to an [intensive corrections order]'.
I also note that the applicant has previously been convicted of 'drive with high range PCA – 1st off' on 24 May 2022 at Blacktown Local Court and received a sentence including a fine of $1,800.00; disqualification – driver: 9 months and alcohol interlock program: 24 months.
The nature and seriousness of the applicant's offences for which he was convicted on 19 June 2023 weighs heavily against revocation of the cancellation decision.
Risk of Reoffending
The applicant has demonstrated remorse for his offending and has taken some steps towards rehabilitation to mitigate the risk of reoffending if the cancellation decision were revoked. However, I am not convinced that he has sufficient insight into the seriousness of his offending conduct, nor that he has sufficiently rehabilitated.
As noted above, the applicant has previously been convicted of drive with high range PCA – 1st off on 24 May 2022. Relevantly, the offences for which the applicant was convicted occurred on 29 April 2022, merely 6 weeks after his most serious offending conduct for which he was convicted on 19 June 2023 (offence date 8 March 2022).
In a letter dated 17 October 2023, the applicant stated:
At the time I wasn’t charged yet and I was not aware of my court date. My mother was very ill back in Fiji so I decided to travel to Fiji on the 30^th July 2022 to visit her. I was there for 1 month and travelled back to Australia in August 2022. By then, I moved to a different address without realising that the warrant of arrest was already sent out to my previous address. All this time, I wasn’t aware the court already decided the matter without my presence at the court. So between May 2022 to March 2023, I had no clue there was a warrant of arrest to arrest me. It was my first time I had an accident and thought that everything was fine after I was released from the hospital.
It seems very unlikely and unclear how the applicant could have formed the view that there would be no consequences for his conduct as a result of the accident, particularly given the injuries caused to the victim, his level of intoxication and the fact that by May 2022, prior to when he left for Fiji, he had been convicted and sentenced for the offence of high range PCA.
It appears from the sentencing remarks and submission on sentence, that the applicant struggled with alcohol and drug issues because of the loneliness he has felt from being away from his family in Fiji. It was also submitted that he was suffering with his mental health.
There is no corroborating evidence in respect of the applicant’s mental health nor any medical evidence supportive of a diagnosed mental health condition.
The applicant has provided a Certificate of Attendance from the Remand Equips Addiction Program completed on 15 June 2023. At hearing the applicant stated that he was unable to complete the Remand Equips Addiction Program because he was transferred to Silverwater. He has however participated in a different program called Connect NA which he said he had completed.
The applicant stated at hearing that if he were released into the community, he wanted to complete further courses and said he did not intend on getting his driver’s license.
The applicant's rehabilitation has only just begun and is still ongoing. I have no confidence that the applicant is rehabilitated such that his risk of re-offending would be mitigated. If the applicant were to reoffend, the nature of the harm that may result includes physical harm, up to and including the possibility of death.
This is a case where the risk of harm to the Australian community is so serious that any risk of re-offending is unacceptable. This primary consideration significantly weighs against revocation.
Family Violence
There is no evidence to indicate that this consideration applies. This consideration is neutral in considering whether to revoke the cancellation of the applicant’s visa.
Strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. Paragraph 8.3 first directs attention to the impact of the Tribunal's decision on the applicant's family members:
(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) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
…
4) the length of tie the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant arrived in Australia on 6 January 2021, and has predominantly been in Australia since that time. During his time in Australia, the applicant has been employed and worked for Cowra Meat Works from 2022 to 2023.
The applicant’s father and four sisters live in Australia. The applicant was unsure if his sisters were Australian citizens. No other evidence had been provided about the applicant’s relationship with these family members nor any impact that may arise should the applicant be returned to Fiji. The applicant did state however that his father and sisters could “catch up” with him when they travelled to Fiji.
The applicant has a close friendship with Ms Taharney Pollard, who resides in Australia and has provided a statement in these proceedings and gave evidence orally at hearing. Ms Pollard said that she has known the applicant since August 2022, approximately 4-5 months prior to his incarceration. Since then, the applicant and Ms Pollard has spoken regularly on the telephone. Ms Pollard has three daughters, the youngest of which is 13 years of age.
At hearing, Ms Pollard spoke of the applicant’s kindness and said that he got on well with her daughters, particularly her youngest. She said that they often spent time together and had dinner together prior to his incarceration. Ms Pollard said that her youngest daughter still spoke to the applicant on the telephone. The applicant and Ms Pollard both stated that they could maintain telephone contact should he be returned to Fiji.
This primary consideration weighs slightly in favour of the revocation of the cancellation decision.
The best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction 99 requires decision-makers to make a determination as to whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child affected by the decision.
As already stated, Ms Pollard’s youngest child, who is 13 years old, has a relationship with the applicant. The evidence is very scant on the extent of the relationship, and it was accepted by both the applicant and Ms Pollard that the applicant does not play a parental role in the child’s life. There is no evidence about any potential impact suffered by the child should the applicant be returned to Fiji. In any event, they can maintain contact via telephone.
This primary consideration weighs very slightly in favour of the revocation of the cancellation decision.
The expectations of the Australian community

Paragraph 8.5 provides:
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 to not allow such a non-citizen to enter or remain in Australia.
…
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.
The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs against revocation of the mandatory cancellation decision.
Other Considerations
Other considerations are set out in Direction 99, at paragraph 9(1). The applicant has not made any claims in relation to the legal consequences of the decision, nor is there any evidence of any relevant impact on the victim or Australian business interests. As such, the consideration that is relevant in this case is the extent of impediments if removed.
Extent of impediments if removed from Australia
Direction 99 provides, at paragraph 9.2, that:
(1) Decision-makers 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 (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.
The applicant is a citizen of Fiji and as such, the relevant country the applicant would be removed to is Fiji. There are no evident language or cultural barriers for the applicant.
The applicant is an adult and is apparently in good health generally. While there is some suggestion of issues with alcohol and his mental health, there is no available medical evidence detailing such issues.
The applicant has a wife and four children in Fiji, ranging in age from 1 to 10. The applicant said that his four children are living with his Aunty in Fiji and upon his return, he could reside with them. He said that his wife lived with her parents.
The applicant expressed concerns about his ability to re-establish himself in Fiji and said that it would likely be very difficult to find work and provide for his family. The applicant said that upon his recent return to Fiji he was unable to find work and returned to Australia so that he could make money to send back to his family.
I accept that there may be some difficulties with re-establishing himself upon his return to Fiji, but he would have at least the same opportunities to obtain employment as other citizens of Fiji.
I consider that this factor weighs slightly in favour of revocation.
Decision
The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the visa cancellation decision. I am not persuaded that the applicant’s strength, nature and duration of ties to Australia; the best interest of minor children; and the extents of impediments if removed outweigh these primary considerations.
The decision under review is affirmed.

55. I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

56.

.........................[SGD]...............................................
Associate
Dated: 3 May 2024

Date(s) of hearing: 26 April 2024

Applicant: Self-represented

Solicitor for the Respondent: Mr M Gauci, Hunt & Hunt Lawyers

[2024] AATA 963

3 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	26 April 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers