Lasalo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4018
•9 November 2022
Lasalo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4018 (9 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6735
Re:Kilistofa (Christopher) Lasalo
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:9 November 2022
Place:Sydney
The decision under review is affirmed.
....................................[sgd]....................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – links to the Australian community – strength, nature and duration of ties – business interests – not limited to delivery of major projects – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmed v Minister for Immigration and Border Protection [2018] AATA 4458
Ali and Minister for Home Affairs [2018] AATA 2512
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CVN17 v Minister for Immigration and Border Protection [2019] FCA 13
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Falzon v Minister for immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hands v Minister for immigration and Border Protection [2018] FCAFC 225
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183
Matthews v Minister for Home Affairs [2020] FCAFC 146
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
R v JT [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
Shi v Migration Agents Registration Authority [2008] HCA 31
Singh v Minister for Home Affairs [2019] FCA 905
Siueva v Minister for Home Affairs (Migration) [2018] AATA 1079
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055
Slynt v Slynt [2017] FamCA 812
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
National Plan to End Violence against Women and Children 2020 – 2032
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 November 2022
On 10 August 2021 the Minister (the Respondent) via his Delegate, cancelled the visa of Mr Kilisitofa (Christopher) Lasalo pursuant to the mandatory provisions of subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). The Applicant then made representations to the Minister seeking a revocation of the visa cancellation decision but, on 18 August 2022 that decision was reaffirmed.[1]
[1] While the relevant decision was made on 18 August 2022, it was notified to the Applicant on 19 August 2022.
The basis of the Respondent’s decision was that the Applicant had a “substantial criminal record” as defined by the Act and thus failed the “character test”, thereby triggering a mandatory cancellation of his visa.
On 20 August 2022 the Applicant applied to this Tribunal for a review of that decision and the matter was heard on 26 October 2022. The hearing was conducted with the parties present in-person before the Tribunal and with both parties legally represented. Evidence was given by the Applicant, two of his daughters and a former workplace colleague.
Relevant visa details
The Applicant is 42 years of age and is a citizen of Tonga. He first arrived in Australia in August 1984 (then aged four years) and has departed and returned to this country on several occasions.[2] His most recent arrival was on 14 August 2002. He is the holder of a Five-Year Resident Return visa (Class BB Subclass 155).
[2] G-documents at 55-56.
Applicant’s personal history
The Applicant has made a lengthy statement which is before the Tribunal in which he outlines his personal history, and this account is drawn primarily from that.[3]
[3] Applicant’s Tender Bundle at 8-9.
The Applicant was born in Tonga, his parents divorced when he was very young and he was raised primarily by his paternal grandparents and an uncle and aunt. He was brought to Australia in 1984, at age four by his grandparents and attended primary school in Sydney. In 1994 he returned briefly to Tonga where he attended a local school before returning to Sydney in late 1995 and resuming his school studies. He transferred from school to TAFE where he obtained his Higher School Certificate. In 1998 he commenced work and has had a solid employment history working in construction and warehouse environments, obtaining qualifications as a forklift driver and subsequently being employed by NSW railways in 2005. In the railways he held a number of responsible supervisory positions and gained significant qualifications as a rail track certifier.
In 1999 he married Fetuu Tamanika and there are three daughters from this marriage. The couple divorced in 2005. He then commenced a relationship with Julie Fagalilo in 2006 and the couple have four children born between 2007 and 2017. The Applicant’s relationship with Julie, according to the Applicant “is now at a standstill. We haven’t spoken for about 4 months”.[4]
[4] Ibid at 1 – Applicant’s Statutory declaration dated 21 October 2022.
It appears that the Applicant has no family remaining in Tonga and that he has spent only a relatively short time there. Nevertheless, he has some competence in the Tongan language (noting that English is also an official language in that country) and he is familiar with Tongan values and mores.
In his evidence to the Tribunal the Applicant indicated generally that he has suffered some degree of family violence in his upbringing. He writes of his father being “a very violent man when I was growing up. I remember he used to put the fear of God in me.”[5] He also indicated that he had, from time to time had “problems with alcohol” and that in his younger days retorted to the use of illicit drugs (marijuana) as a way of coping with feelings of depression.
[5] G-documents at 98.
The Applicant indicated that he was generally in good health but that he had suffered from a form of heart attack (NSTEMI – Non-ST-Elevation Myocardial Infarction) in 2021 for which he had been prescribed medication,[6] but, without consulting with his medical advisors he had discontinued taking those prescribed medications.
[6] Ibid at 101.
The Applicant’s offending history
The Applicant has been convicted of numerous offences which took place over a period between January 1997 and May 2021. The last of these offences resulted in the Court imposing a term of imprisonment of 12 months (with a non-parole period of five months), which was upheld on appeal.
The details of the Applicant’s offending are as set out in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) and the Tribunal reproduces them, with acknowledgement[7], as follows:
[7] Respondent’s SFIC at [6] with several erroneous dates corrected.
Date of offence
Date of conviction
Offence
Sentence
11.01.1997
04.11.1997
Assault
Recognisance order: $10
12 months supervision by Juvenile Justice.
Costs other: $250
Victims compensation levy: $30
01.12.1997
11.08.1998
Maliciously wound-T1
Community service order without condition: 100 hours 28.01.1998
24.03.1998
Possess prohibited drug Recognisance order: $10 27.07.200
05.09.2001
Unlicensed for Class, Class C/R/LR/MR-2nd + offence Fine: $350
Use vehicle not comply with standard tyres Fine: $200
Drive with middle range PCA
Fine: $650 Disqualification (from applying for a licence): concluding 05/09/2002 28.02.2002
21.03.2002
Drive while disqualified from holding a licence
Fine: $1,200
Costs court: $58
Bond s9: 3 years Disqualification: 2 years25.03.2003
10.06.2003, 23.02.2005, 11.05.2005, 19.06.2006 (call-up)
Drive while disqualified from holding a licence
On 10.06.2003 and 23.02.2005:
Convicted s25(2) warrant to issue
On 11 May 2005: Community service order: 100 hours Costs court: $63 Disqualification: 3 years
On 19.06.2006 (call-up): Fine: $1,50028.12.2004
23.02.2005
23.02.2005, 11.05.2005, 19.06.2006 (call-upUse uninsured motor vehicle Fine: $500
Use unregistered vehicle on road area (not a trailer) Fine: $500
Drive while disqualified from holding a licence
On 23.02.2005: Convicted s25(2) warrant to issue
On 11.05.2005: Community service order: 100 hours cumulative Cost court: $63 Automatic/statutory period
On 19.06.2006 (call-up): Fine: $1,50029.06.2005
27.07.2005
Driver/rider state false name or address
Fine: $500 Costs court: $65
Disobey no right turn sign-motor vehicle Fine: $200 Costs court: $65 27.07.2005, 19.06.2006
Drive while disqualified from holding a licence
On 27.07.2005: Convicted s25(2) warrant to issue
On 19.06.2006: Imprisonment: 2 years suspended on enter bond s12: 2 years Fine: $1,500 Disqualification: 2 years13.09.2009
13.09.2009
Drive while disqualified from holding a licence
Fine: $1,500 Imprisonment: 2 years suspended on enter bond s12: 2 years Costs – court: $76 Disqualification: 2 years commencing 13/09/2009, concluding 12/09/2011 Drive with low range PCA
Fine: $500 Costs – court: $76 Disqualification: 12 months commencing 13/09/2009, concluding 12/09/2010 Use unregistered registrable Class A motor vehicle Fine: $400
Use uninsured motor vehicle Fine: $400
22.05.2016
14.06.201
Stalk/intimidate intend fear physical etc harm (domestic)-T2 Fine: $500
10.06.2019
18.06.2019
Destroy or damage property (DV)
Community correction order: 18 months commencing 18/06/2019, concluding 17/12/2020
Supervision: 18 months commencing 18/06/2019, concluding 17/12/2020, supervised by Community Corrections Service
Assault occasioning actual bodily harm (DV)-T2
Intensive correction order: 12 months commencing 18/06/2019, concluding 17/06/2020
Supervision: 12 months commencing 18/06/2019, concluding 17/06/2020, supervised by Community Corrections Service Community service work: 100 hours
08.04.2021
01.06.2021, 02.07.2021
(severity appeal)Contravene prohibition/restriction in AVO (Domestic) Imprisonment (aggregate): 12 months commencing 1/06/2021, concluding 31/05/2022
Non-parole period: 5 months
Order confirmed on appeal
Contravene prohibition/restriction in AVO (Domestic) Contravene prohibition/restriction in AVO (Domestic) Common assault (DV)-T2 Common assault (DV)-T2 Assault occasioning actual bodily harm (DV)-T2
The Tribunal proposes to discuss the principal instances of the Applicant’s offending under a series of separate headings, without further explicit reference to some of his specific offending such as a minor drug possession conviction and failing to declare his criminal record on an incoming passenger card, already set out above.
Traffic offences
It can be seen that the Applicant had an appalling record of traffic offences between 2001 and 2009. These included several offences of driving with prescribed content of alcohol and numerous offences of driving while disqualified. This Tribunal and the Courts have stated repeatedly that it regards repeated driving offences as a matter of considerable seriousness, especially where the safety of members of the public is put at risk.[8] Repeated offences which demonstrate a contempt for the law, such as continuing to drive once disqualified bespeak a lack of respect for the law and Australian society in general, and in his oral evidence the Applicant admitted that he had shown complete contempt for the courts and their orders in this respect. It is of some significance that in relation to matters which were before the court on 19 June 2006 the court saw fit to impose a term of imprisonment of two years, only suspended upon entering into a two-year good behaviour bond. In other words, the Applicant was before a court in 2006 and sentenced to imprisonment, so he was fully aware of the consequences which could flow from repeated breaches of the law and that improper future conduct could render him liable to serve an actual term of imprisonment. The Tribunal takes note of the fact that the Applicant has not apparently committed any further traffic-related offences since 2009 and this is to his credit. To a reasonable degree it ameliorates the weight which the Tribunal would assign in determining the extent to which this traffic record should be held to the Applicant’s discredit.
[8] Ahmed v Minister for Immigration and Border Protection [2018] AATA 4458; Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347; JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762; Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366.
Orders of the Court
The Applicant’s offending behaviour in relation to contravening of Apprehended Violence Orders (AVOs) will be discussed below, but at this point the Tribunal notes that he has also breached conditions of imposed community service orders and bail conditions, leading to various warrants being executed against him.[9] These offences, alongside the Applicant’s record of driving while disqualified indicate that he appears to take a quite cavalier approach to orders of the court and to his responsibility to be compliant with them.
[9] Respondent’s Tender Bundle at 16-21, 38-39; 41; 55.
Violent offences
A Police report of 11 January 1997 records that:
“Offender 2: Chris LASALO About 4.15 pm on the 11/1/97 the victim… was walking along [the road] when he was approached by a group of 6-7 people. One of the group asked the victim for a cigarette and then a dollar coin. When the victim replyed [sic] that he did not have any money nor did he smoke he was punched to the head first by offender 2 and then offender 1. This incident was witnessed by a Police Officer from the NSW dog squad who was on his way to work.”[10]
[10] Ibid at 94.
In his Personal Circumstances form, submitted as part of the Applicant’s initial representations for revocation of the visa cancellation decision, the Applicant gave a different version of the event:
“As we were walking on the footpath a friend in our group, that I had recently met… [h]ad waked over to two people who had walked out of a house… he asked one of them if they had a cigarette in which they replied they didn’t smoke. The so called friend punched the victim in the head for no reason. The others in the group ran up started punching the victim. I tried to stop the assault pulling the victim towards me to cover him from the assault that was happening. Police were driving past and seen me holding the victim I was trying to protect.”[11]
[11] G-documents at 93-94.
This is simply untrue. The Applicant was a primary assailant and admitted in evidence before the Tribunal that he had in fact punched the victim as described in the original police report.
On 1 December 1997 the Applicant and others were at Cronulla beach when words were exchanged with a person, unknown to them, which then led to some sort of brawl. In the process the Applicant “smashed a bottle on the side of the victims head”.[12] This led the Applicant to be convicted of the offence of “malicious wound” for which he was sentenced to 100 hours of community service.
[12] Respondent’s Tender Bundle at 94.
Domestic/Family Violence offences
These offences lie at the heart of these proceedings and need to be considered in more detail. The Applicant has seven children. From his first marriage to Ms Fetu Tamanika, he has three children: two of whom, OL and EN are adults and one, TL a minor aged 17 (turning 18 in September 2023). With his current partner (Julie Fagalilo) there are four minor children: EL (born 2007), OJ (born 2008), SL (born 2009) and JL (born 2017).
22 May 2016
At this time the Applicant was divorced from his wife who had custody of their three children. The Applicant testified to the effect that one of his daughters had told him that she had been the victim of an aggravated sexual assault perpetrated by her mother’s then partner.[13] The Applicant went on to testify that this matter was reported to the Police and resulted in the perpetrator being identified and eventually sentenced for this offence. Other details of this are not clear but the Tribunal accepts the bare outline of matters as stated. The immediate result of the Applicant being told of this assault of his daughter was for him to send a message, via Facebook Messenger, to his ex-wife in the following terms:
"IT'S EITHER BRING BACK MY GIRLS, OR WE'LL BOTH LOSE! IT'S NOT HARD 2 FIND U IN MILDURA U FUK! I HOPE SUM FUK RAPES U, SO U KNOW THE PAIN [victim] WENT THRU U DIRTY FUCKEN DOG!!... U HAVE FUCKED WITH ME THE LAST TIME!!!!... If ur husband ever lays his hands in the girls I'll kill both of yous!!!"
[13] G-documents at 51;
He then also sent a further message written in the Tongan language which said:
"Eat shit and if you have the guts you will wait for me to come to Blacktown. You're acting hard over the mobile. You're shit and you don't have money. You talked about my family. Man, I'm going to come down to there and shoot you because you are a shit head that has no money…"
Ms Tamanika reported these messages to the Police and the Applicant was arrested and charged with stalk/intimidate intend physical harm for which he was sentenced to a fine of $500.00 when the matter came before the court. In addition, the police obtained an Apprehended Domestic Violence Order against the Applicant.[14]
[14] Ibid at 50-51.
10 June 2019
It is necessary to set out in some detail the events which occurred on that day and the following is extracted from the relevant police report:[15] At the time, the victim (EL) who is one of the Applicant’s children by his wife (Ms Tamanika) was staying with him and his current partner Ms Fagalilo. At the time of the event, the victim was 15 years of age:
“On Wednesday 12th of June 2019, the SWM Child Abuse Unit received a report in relation to the victim having been assaulted with a hammer by her father [the Applicant]… About 2:41 pm, police received further information confirming the victim was currently at the home. About 2:50pm, police attended the residence and observed the victim's step mother ......... ......... to be at the front of the residence . ......... told police that the victim was currently at school. Police informed the step mother that they were aware that the victim was currently in the residence. The step mother gave police entry into the home. Police observed the victim to be in the front bedroom. The victim was upset and had a swollen face. Police observed the victim to have redness to her eyes. The victim ag reed to attend t he SWM CAU office with detectives. About 4:25 pm police obtaining a Visual Audio Recorded Interview from the victim. The victim demonstrated a good understanding of truth and lies. Police asked the victim what have you come here to talk to me about today? The victim states, "the incident with my dad". The victim described the incident as being the "one where I got smacked". The victim provided police with the following information, About 1:00 pm on Monday 10th of June 2019 the victim was at home at ................. . . . . . . . . . . Also present in the home was the accused and three of her siblings. The victim was in her bedroom. The victim commenced sending the accused a number of text messages during which she asked the accused if she could go to the Samoan Independence Day at Liverpool as she wanted to spend a few hours with her sister .......... The accused replied back "No The victim described herself as having "chucked a tantrum". A number of text messages continued to be exchanged between the accused and the victim. Following this the accused entered the victim's bedroom. The victim was sitting on her bed. At this point the victim became reluctant to provide police with information in relation to what took place. Several breaks were taking during the interview and the recording was stopped. In order to allow the victim to feel more comfortable the victim's step mother ......... sat in during a portion of the interview. The victim further agreed to answer the questions by writing down her answers. Police provided the victim with a pen and notebook. Police asked the victim, "What happened after your Dad came into your bedroom and you were sitting on your bed". The victim wrote the following, "He said to unlock my phone and so I did and then he seen a message between me and my gay best friend and asked if that was ......... and I replied no then he slapped me across the face a few times and was Just asking the same question is that ........., then thats when he started pulling my hair and saying things that I couldn't even remember after that I got a few more slaps across the face and then he checked my phone asking is that ......... over and over again I said no then he down on the bunk bed and asked me what do I get out of lying and I said I get nothing out of it then he asked why do I keep lying I said no reason then that when I got slapped a repeatedly and then I fell to the floor while something on my face was bleeding and then he asked where is the hammer no one replied, then he asked my brother to go outside to get the hammer so my brother got it and my dad took it smashed my phone in front of me and then told to sit up and he asked me a question like why do I keep lying what do you get out of it and then I replied a few times but each time I didn't answer the question he would smack me across the head. he finally stopped asked me if I wanted to stay or go back, I chose to stay and then he said I had until ......... was home so then I cleaned up my blood and fixed my hair and then he said to me you will remember this day. I cleaned up when I finished I went outside cryed (sic) abut then came inside told my dad what choice I made and so then he got up off his bed and we talked about it and then after that I asked to go Samoan Independence Day he said yes and so I got ready and thats it." Police asked the victim a number of questions following this. The victim told police the following, The accused used his hands to pull her hair "pretty hard". The accused used an open hand to slap her face and her cheeks and slapped her, "pretty hard". The accused used the handle of the hammer when he smacked the her across the top of the head and the cheeks. The hammer has a wooden handle and is usually kept in the accused's tool box which is located on the side of the garage. ......... went and got the hammer. The victim's siblings ......... (11 years of age), ......... (12 years of age) and ......... (10 years of age) were present in the home when it took place. The victim had blood coming from the inside of her mouth from her gum as a result of the assaults. The victim experienced pain to the top part of her head, her cheeks, eyes and forehead. The victim is of the belief that the accused hit her approximately 15 times and had used the hammer on her 5 to 6 times. Following the incident, the victim observed a small red dot to her right eye and noticed that her cheeks became puffy. Following the incident, the victim cleaned up blood from the blinds in her bedroom and spoke to the accused about the incident. The accused told the victim "that he should not have done that…….. The accused was conveyed to Campbelltown Police Station where he was introduced to the Custody Manager and read Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002. The accused participated in an interview ......... relates. During the interview the accused made full admissions to assaulting the victim saying "I gave her a hiding", "I gave her a smack in the face" The accused could not recall how many times he hit the victim to the face but stated it was more than once and that he had used both hands in an open palm. The accused stated there had been ongoing tension building between himself and the victim over discipline issues and her behaviour on this day was enough. The accused admitted throwing the victims mobile phone on the ground causing it to break and further using a hammer to smash the mobile phone. The accused could not recall using the handle of the hammer to hit the victim to her face and head but stated he had been so angry he probably did. The accused admitted to causing the bruising and swelling to the victims face and eyes and the bleeding to the victims mouth. The accused expressed remorse and stated he knew he went too far."
[15] Respondent’s Tender Bundle at 77-78.
When the matter was before the Court the Sentencing Magistrate said that “[o]n any view though it would have to be a serious example when it comes to domestic violence.” His Honour went on to say:
Domestic violence yet again directed by males towards younger people less able to defend themselves. What an appalling series of acts by you. Any right minded person reading the facts would be understandably horrified that fathers could get to this level of violence.
His Honour then went on to say:
Yes, there is going to be a level of correction, lawful correction. I do not think this is lawful correction on any view, nor would any other person in the community. You are into some form of gaol. Let us make that abundantly clear. Anything short of some form of gaol would be an affront quite frankly against your record and the serious example of domestic violence, and need to encourage people to do the right thing. As I said, so many times with these type of matters with domestic violence particularly young people, their injuries whatever your daughter sustained when it came to injuries, they will heal. But what will not heal is the emotional damage. The fact that young people will see that it is okay for violence to be used against other people. You imagine the emotional damage as opposed to the physical damage. Quite frankly you are awfully close to going in full-time. That would not come as a surprise.[16]
[16] G-documents at 47-48.
After considering the Applicant’s previous record of offending and noting that while there had been no “recent’ violent offences, the Magistrate went on to impose a sentence on the Applicant. It is not for the Tribunal to reflect upon the determinations of the Court but rather simply to observe that, for the offence of hitting a 15-year old vulnerable girl over the head with a hammer five or six times and otherwise physically assaulting her a further 10 times, so that this child had to clean the blood off herself and even from the blinds in her bedroom, the Applicant was given a sentence of an Intensive Correction Order for 12 months with supervision by Community Corrections Service and required to perform 100 hours of community service. The Applicant completed all these requirements in accordance with the orders of the Court.
8 April 2021
The final relevant matter concerns an incident which took place in the family home when the Applicant and his partner returned from drinking in the pub:
“On the drive home the accused began to argue with ......... and he continued to verbally abuse her until they arrived home at their residence. The accused and ......... proceeded to exit their car and walk inside their home. Once inside their home, the accused continued to yell at ......... and argue with her about issues relating to money and finances. The accused continued to verbally abuse ......... as he called her a, "stupid bitch" and a "stupid dumb bitch ." The accused walked into the bathroom for a short period of time before exiting and approaching .......... The accused told ......... to go and wash the dishes in the kitchen to which ......... obliged. As ......... was standing at the kitchen bench cleaning and packing away the dishes. As ......... continued to pack away the dishes, the accused yelled at ......... , "Why are you slamming things?" ......... heard the accused beginning to yell at ......... and she proceeded to walk into the dining area which joins onto the kitchen area. As ......... walked into the dining area, the accused and ......... were facing each other in the kitchen area. The accused, using an open right hand, proceeded to slap ......... to the left side of his face. As the accused slapped ......... to his face, the accused continued to yell, "Why are you slamming things, why are you slamming things?" ......... called out to the accused and said, "Babe, just leave him alone." The accused turned around, away from ......... and approached .......... The accused said to ......... , "Don't you start." ......... walked from her bedroom to the dining area as lshe could hear the accused yelling . ......... said to the accused, "You have no right to touch mum. you have no right to touch us." ......... became fearful that the accused was about to assault her and so she backed away towards an internal wall of the residence that connects the dining and kitchen areas .......... continued to say to the accused, "You have no right to hit mum. You have no right to hit me." The accused began to walk towards ......... , as ......... continued to say, "Dad, you're not in the right head space. You have no right to touch me." ......... began to back her way out of the dining area and she began to walk towards her bedroom . ......... said to the accused, "Just leave her alone." ……… The accused again asked ......... , "When are you going to stop lying?" ......... attempted to turn around to push the accused away from her. At this time, the accused released his grip on ......... 's shirt and whilst ......... was in the motion of pushing the accused away, the accused has punched ......... to the right side of her face using his clenched right fist. ......... felt immediate pain and sensitivity to her right cheek area. ......... proceeded to push the accused back towards a nearby wall as she feared she would be assaulted further. The accused yelled at ........., "Let the kids see what we're doing, let the kids see the violence we're going to create." ......... responded to the accused, "Just leave me alone." The accused proceeded to grab ......... and push her into a nearby internal wall which caused her to fall down against the wall. ......... began to cover her face using both her hands as she feared she would be punched again by the accused.”[17]
[17] Respondent’s Tender Bundle at 73-74.
On this occasion when the matter came before the Court the Sentencing Magistrate made reference to the Applicant’s prior offences against his daughter and, after reviewing the details of the current offence stated:
“ … the Court's [sic] are not going to keep tolerating domestic violence, particularly when men what [sic] to assault their wife and children in their own home just because you want to go and get drunk and get aggressive. There is no excuse for that behaviour.”[18]
[18] Ibid at 39.
His Honour imposed a six-month custodial sentence for the assault against the Applicant’s partner and a further five months sentence for the assault on OJ, remarking:
“FOR SLAPPING OJ TO THE FACE A NUMBER OF TIMES - AND I DO NOTE OJ IS 13, YOU SHOULD BE PROTECTING HIM, NOT HURTING HIM AND IF YOU CONSIDER THAT AS BEING ANY TYPE OF DISCIPLINE IT IS COMPLETELY INAPPROPRIATE AND IT WAS NOT DISCIPLINE, IT WAS DRUNKEN, AGGRESSIVE BEHAVIOUR”.
In addition, His Honour imposed a five-month sentence for slapping EL, who was 14 at the time and noting that each of the assaults were also breaches of an AVO, imposed two further five-month sentences. In aggregate the sentence imposed was one of 12 months imprisonment. On the basis that the Applicant had never been in gaol before, the Magistrate found “special circumstances” to exist and imposed a five-month non-parole period.[19]
[19] Ibid at 39-40.
The Applicant sought a severity review of the sentence, and this was heard by Weinstein J who upheld the sentences imposed, remarking that:
There is no doubt that general deterrence looms very large in this sentencing exercise, taking into account that it was domestic violence related. It goes without saying that Parliament has dictated that the courts and the public take domestic violence related offences very seriously. General deterrence and denunciation have a significant role to play in the sentencing exercise, as does specific deterrence in the particular facts of this case, taking into account that not less than two years ago, in June 2019, the offender was convicted of assault occasioning actual bodily harm, domestic violence related for which he received an Intensive Correction Order for 12 months.[20]
[20] Ibid at 46.
On consideration of Police Reports
The Tribunal is conscious of the warnings given in numerous cases about how to evaluate and assess the reliability or relevance of Police records where the authors of the record are not subject to cross-examination and where applicants contest or deny their accuracy.
In CVN17 Kenny J has pointed out, the Tribunal should treat “police service files” carefully and acknowledge the “limits of the material before it that was said to evidence such conduct, including its cogency and reliability”.[21]
[21] CVN17 v Minister for Immigration and Border Protection [2019] FCA 13 at [98-100].
In Healey the Tribunal stated:
In terms of the probative weight to be given to police records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence and although police records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them under the chapeau of ‘other conduct.’ Witnesses must be afforded procedural fairness, however, by having the records put to them for response. It is not accepted that procedural fairness requires the authors of police records to be cross-examined for weight to be placed on these reports.[22]
[22] Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309 at [72].
Anastassiou J has similarly expressed the need for care about “reaching a view that criminal conduct has occurred, absent a prosecution and conviction”.[23]
[23] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 at [74].
Anderson J in Bullmore noted that:
there is no automatic, unqualified or universal rule as to when an administrative decision maker would be required to facilitate cross-examination of, or not rely on, material which emanates from a source that has not been tested by way of cross examination in the Tribunal.[24]
[24] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 at [69].
In this particular instance, the Applicant was taken to all of the relevant details contained in the Police Reports by the Respondent’s representative. He was asked specifically if each of the relevant statements was correct, and he replied, each time, that they were correct. At no stage did the Applicant deny any of the facts contained in the police documents, although on several occasions he stated that he did not have a full recall of all the matters reported. In any event there were convictions resulting from the allegations in the reports and it is not permitted for the Tribunal to, in any way, “go behind” the decisions of the Court and the facts which the courts have accepted as part of their decision-making process.[25]
[25] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575.
The Legislative Scheme – A brief outline
Subsection 501(3A) of the Act provides that the Minister must cancel a persons’ visa in the following circumstances:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i.paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or...; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
For the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
It can thus be seen clearly in relation to the Applicant that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than 12 months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process as follows:
1.This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
2.For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
3.As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, subsections 501CA(4) and (5) come into effect as follows:
4.The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
5.If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[26] This is the reviewable decision.
[26] G-documents at 17 to 31.
In coming to their decision, the Delegate noted that, since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In order to assist decision-makers, the Minister has, over a period of time, issued several Migration Directions under subsection 499(1) of the Act. Such Directions set out matters which a decision-maker is required to consider in determining whether or not “another reason” exists for the reviewable decision to be revoked or varied. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
The current Ministerial Direction in place is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Ministerial Direction 90 or MD90) and was made effective from 15 April 2021.
Where a decision has been made by a delegate of the Minister under subsection 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under paragraph 500(1)(ba) of the Act. The Applicant lodged his application for review with the Tribunal on 22 March 2018.[27]
[27] Ibid at 3.
The application was heard by this Tribunal on 26 October 2022. Under the requirements of paragraph 500(6L)(c) of the Act, the Tribunal must determine the matter within 84 days of the date upon which the Applicant was notified of the reviewable decision. In this case, the matter must be determined on or before 11 November 2022. In the absence of a decision by that date the reviewable decision would be deemed to have been affirmed.
The Issue before the Tribunal
It to this Tribunal, in deciding whether or not to set aside the Original Decision and either recommend that Ministerial discretion be exercised in favour of the Applicant, or substitute another decision, to determine whether or not the Applicant meets the character test (s 501 of the Act) or whether there is “another reason” for setting aside the Minister’s decision not to revoke the Applicant’s visa cancellation. In doing so, the Tribunal “stands in the shoes” of the original decision-maker,[28] but it must make its decision on the basis of information or evidence before it at the time of its decision-making, some of which may not have been before that original decision-maker.[29]
[28] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[29] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
It is clear and not in dispute that the Applicant does not pass the character test, and consequently the issue before the Tribunal is whether under subparagraph 501CA(4)(b)(ii) of the Act, “... there is another reason why the original decision should be revoked”.
In Gaspar v Minister for Immigration and Border Protection, North ACJ elaborated on how to approach this discretion:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[30]
[30]Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
It has also been stated by this Tribunal that:
“The existence or otherwise of “another reason” should be established on the balance of probabilities”.[31]
[31] Siueva v Minister for Home Affairs (Migration) [2018] AATA 1079 at [21].
Ministerial Direction 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Subparagraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[32]
[32] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [33] to arrive at a final determination.
[33] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. The Preamble to the Direction, states clearly as an “Objective”: (emphasis added):
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[34]
Primary considerations
[34] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community and Family Violence
Under this criterion the Tribunal must give specific attention to:
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters.[35] Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour[36] and any cumulative effect of repeated offending.[37] In addition, the Direction considers the provision of false or misleading information to the Department a serious offence.[38]
Discussion
[35] MD90 at 8.1.1(1)(a).
[36] Ibid at 8.1.1(1)(d).
[37] Ibid at 8.1.1(1)(e).
[38] Ibid at 8.1.1(1)(f).
The Tribunal assesses that the offences committed by the Applicant are serious. They involve several instances of crimes of violence and several of these were committed against women, or young vulnerable people. The Applicant has a lamentable record of ignoring the orders of the courts; he has given false information to government authorities (an instance of giving a false name to police in his driving record and a false declaration on an incoming passenger card) and the severity of his offences has increased over time from petty offences to serious assaults.
Although the Applicant has not had any “formal warnings” about the potential cancellation of his visa as described in the Direction, he was clearly on notice about the possibility of a gaol sentence for further offences. He was first spared gaol in 2005 when a two-year sentence was suspended and then in 2019 was clearly warned by the Presiding Magistrate that any further offence was likely to result in a full-time custodial sentence. These clear warnings were ignored.
The Applicant’s offending behaviour must be rated as being at a heightened level of seriousness as per the criteria of the Ministerial Direction.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[39] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[39] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[40]
[40] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[41]
Discussion
[41] Ibid.
When the Applicant was before the Court in 2019 the Sentencing Magistrate was provided with a Sentencing Assessment Report from NSW Community Corrections which assessed the Applicant as “suitable to undertake community service work”.[42] In 2021 a further Sentencing Assessment Report rated the Applicant as having a “low” risk of reoffending.[43]
[42] Respondent’s Tender Bundle at 2.
[43] Ibid at 5.
The Sentencing Magistrate does not appear to have referred to the report before him however in the severity appeal the Judge, in declining to reduce the original sentence remarked that:
I cannot say that I am able to determine, even taking into account the Sentencing Assessment Report with which I have been provided and which indicates that the offender has a low risk of reoffending and has prospect of rehabilitation, taking into account what is on his parole record. In my opinion, the magistrate was correct in imposing an aggregate term of imprisonment for 12 months and a non-parole period of five months.[44]
[44] G-documents at 52.
There is no doubt that the Applicant has made several expressions of remorse for his behaviour, both in his written submissions and in his evidence to the Tribunal, although he did not take the opportunity to do so at the court hearing in 2021.
The Tribunal also takes note of the evidence presented about the number of rehabilitation courses undertaken by the Applicant while in custody. It appears that he has participated in some 26 online courses[45] involving some 161 hours of course work, of which 39 related to parenting skills. In addition, he has participated in some online programmes run by the rehabilitation centre, Odyssey House.[46] The Tribunal gives the Applicant credit for his efforts in this regard and notes that the told the Tribunal that he had learned in particular that he needed to more effectively manage his anger and not react immediately to perceived provocations.
[45] Listed in the Applicant’s SFIC at [21].
[46] Applicant’s Tender Bundle at 3.
However, what weighs in the mind of the Tribunal is that the Applicant has a consistent record of disregarding court orders and directions. This was evident in his earlier traffic record but is then repeated in his failure to adhere to bail conditions, corrections orders and AVOs.[47] The Tribunal cannot be assured that this behaviour of ignoring inconvenient restrictions is not somehow an ingrained feature of the Applicant’s value system and behaviour. As such it does not feel confident that it can find that the Applicant is at a “low” rate of risk for reoffending, even if the reoffending is at the level of ignoring court orders (itself a matter of considerable seriousness) rather than actually committing further acts of violence.
[47] A specific of example of this ongoing contravention is described at paragraph 109 of this decision.
In such circumstances there is a risk that the Applicant would commit further offences which, should they repeat his violent and aggressive behaviour demonstrated both against members of his immediate family and total strangers, would pose a serious threat to the Australian community. In this sense the Tribunal accepts that a threat to individuals can, and does in these circumstances, constitute a threat to the community as explained in a recent decision by Abraham J.[48]
Conclusion
[48] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055 at [59].
There is a genuine risk that the Applicant will re-offend and should he do so there would be a genuine threat to the wellbeing of the Australian community. As such, this criterion must count against the Applicant and does so to a significant degree.
Family violence
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the non-citizen engage in further acts of family violence.
There is no doubt as to where this Tribunal stands in relation to matters of family or domestic violence.
In XNBW Senior Member Illingworth described domestic violence as a "scourge", a "plague and a "pernicious blight" upon the community.[49] I explained in Mendoza that:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[50]
[49] Ali and Minister for Home Affairs [2018] AATA 2512 at [113]; R v JT [2007] NSWDC 377 at [1]; and Slynt v Slynt [2017] FamCA 812 at [1] respectively.
[50] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
The Court in R v Saunders[51] stated in relation to intervention orders that:
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[51] [2017] SASCFC 86 at [37].
The Tribunal also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:
Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.[52]
[52] R v Wood [1994] QCA 297.
These proceedings of course have nothing to do with the issue of punishment, which has already been determined and over which this Tribunal has no remit,[53] but it is important to emphasise that breaches of DVOs are themselves matters of utmost seriousness. Subsection 501(2) “does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct”[54] but the potential consequences of such conduct need to be clearly understood.
[53] Falzon v Minister for immigration and Border Protection [2018] HCA 2 at [15].
[54] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76].
It is important to emphasise that family violence, according to the Ministerial Direction encompasses far more than simple acts of physical violence or aggression. The Direction (at 4.1) makes it clear that the term extends to matters such as “stalking”, “repeated derogatory taunts” or “intentionally damaging or destroying property” as well as the exercise of coercive control.
In Vu the Full Federal Court drew attention to the decision of the Supreme Court of the United Kingdom which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.[55]
Discussion
[55] Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90 at [55] citing Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433 at [156].
The Tribunal has set out in considerable detail three separate instances where acts of family violence were committed by the Applicant. In the first instance there was the matter of the obscene and threating Facebook messages sent by the Applicant to his ex-wife. It may well be that assessment of the offence is coloured by the circumstances, namely that the Applicant had become aware that his daughter had been sexually assaulted, that the assailant was his ex-wife’s new partner and that he had not been informed of the fact. His reaction, as he explained to the Police[56] was somewhat understandable, if still inexcusable. Any assessment should be cast within the light of those circumstances.
[56] G-documents at 51.
On the other hand, there appears no degree of mitigation which can be advanced for what were the other two significant instances of family violence. In particular the Tribunal is appalled by a narrative in which a 15 year old girl, asking for nothing more than to be allowed to attend a function is the subject of a gross assault during the course of which another minor child is sent to fetch a hammer, the handle of which is used to beat the child over the head five or six times causing enough blood to be spilled that the child has to wipe it off both herself and the blinds in her bedroom. There was an element of premeditation about part of this conduct. It was not simply some instantaneous reaction, although part of it was, but to send out (via a small child) for a hammer indicates an intention to do something violent – initially to an object but then to a small child.
The Applicant has made a number of statements of remorse in relation to this assault, starting with one made to the Police at the time of his arrest.[57] These were repeated in remarks made to Corrective Service officers,[58] in his Personal Circumstances Form[59] and noted in the 2021 Sentencing Assessment Report.[60]
[57] Respondent’s Tender Bundle at 78.
[58] Ibid at 53.
[59] G-documents at 98.
[60] Respondent’s Tender Bundle at 4.
However, he has also made excuses. Blaming his upbringing he writes:
“I had to suppress my emotions.
I developed passive aggressive behaviour which had hidden anger behind it. I guess it was just a time bomb waiting to explode at any time, and it did with the one’s I love the most.”[61]
[61] Applicant’s Tender Bundle at 25.
One of the Sentencing Assessment Reports states:
“• Mr Lasalo stated that prior to the current offences his relationship with the victim had been difficult for some time.
• He claimed that the victim had eroded the trust in the relationship due to her alleged previous behaviours. He claimed consequently her behaviours caused him to use disciplinary measures with his daughter.
• Mr Lasalo stated that in his view his offending behaviour was a way to discipline his daughter, however stated that ‘it got out of hand’ and acknowledged that in part his offending behaviour was as a result of his poor anger management.”[62]
[62] Respondent’s Tender Bundle at 2.
Case Notes from the NSW Department of Corrective Services record:
“Chris reported around the time of offending he was work for Multi Civil Rail, where he has been employed since 2002 and plans on returning to on release. Things were going well in his relationship and with the family, he noted a prior AVO that was still current pinop[63] was his daughter from a previous relationship that lived with him. He downplayed the incident that resulted in this AVO as a parental disciplinary action.”[64]
[63] Person in need of protection.
[64] Ibid at 59.
There is also an element of victim blaming throughout the accounts of these incidences The Police Report of 12 June 2019 records:
“The accused stated there had been ongoing tension building between himself and the victim over discipline issues and her behaviour on this day was enough.”[65]
[65] Ibid at 78.
The Tribunal notes not only the immediate impact on the Applicant’s daughter but also upon the Applicant’s son who was not only made almost complicit in the attack by being told the fetch a hammer but must have been traumatised by watching the assault upon his sister.
In the second major family violence incident again, the victims included several of the minor children as well as the Applicant’s partner. The Applicant’s 13-year old son, is washing dishes as ordered, but because he is apparently making some noise he is slapped. His mother (who has previously been the subject of gross verbal abuse) intervenes and she is subsequently slapped. A 14-year-old daughter tries to intervene and plead with her father to leave her mother and brother alone. She is also slapped. The mother pleads with a third minor child who has witnessed all this to call the Police, which he does. The sentencing Magistrate expressed the sentiments of the community stating that “There is no excuse for that behaviour”.
Conclusion
There is never an acceptable excuse for family violence as I said in Mendoza. The level of family violence perpetrated by the Applicant was gross. The second incident occurred after he had completed the conditions and requirements imposed on him by the Court for the earlier incident in which he was warned explicitly about the potential consequences of any repeated behaviour. The warnings of the Court and the alleged expressions of remorse at the time provided no shield or protection for the family victims. The Tribunal cannot but conclude that this criterion weighs to the greatest (significant) degree possible against the Applicant.
The best interests of minor children
MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[66]
[66] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
There are three “groups” into which the various children concerned fall. The first are the four minor children with the Applicant’s partner Ms Fagalilo. Secondly there is one minor child (now aged 17 years) from his first marriage to Ms Tamanika. The other two children of this marriage are now adults. Finally, there are nine nephews and nieces.
(a)EL (aged 15) is the eldest daughter by Ms Fagalilo. She has written in support of her father stating that he is “a rely [sic] important person in my life”. She outlines the extent to which the Applicant supports her and the family; devises games and musical activities for them, encourages them to learn self-defence and martial arts and supports her education. She writes that being apart from her Dad “isn’t something I want”.[67] The Applicant describes his relationship as “a father/daughter connection like no other”.[68] He also says that they participate in Bible readings each afternoon. EL was, of course, one of the victims of the Applicant’s family violence and it is difficult to square his professions of love and support with his manifest behaviour. Nevertheless, the Tribunal accepts that there would be benefit for EL were she to have a father figure in her life.
(b)OJ, aged 14, is the Applicant’s eldest son. He writes that his father is “an excellent role model for me” and that he encourages him to do his best and try new things. He also writes that “I cannot imagine not having my Dad around, I miss him dearly”.[69] The Applicant describes OJ as “the gentle giant and clown of our family” who looks forward to their daily Bible reding sessions. OJ was the victim of the first part of the assault on family members in 2021. Again, the Tribunal does not dispute that there would be benefit for a young man of this age having a father figure in his life.
(c)SL, aged 12 is the second son and also writes that his father “is always proud of me and my siblings for following our dreams” and that although his father is busy, he “somehow makes time for us”. For SL, “My dad is a Batman in our family”.[70] The Applicant writes that SL is “the politician in our family” because he always wants to debate everything.[71] As with OJ, the Tribunal accepts that it would be of benefit to SL were his father to be able to play an active role in his future.
(d)There are no written representations from JL who is only five years of age. His father describes JL as “my shadow whom I see every day” and regards him as “his dad’s precious baby”. He writes that JL walks around with a picture of his father to which he talks constantly.[72] Again, the Tribunal accepts that it is generally in the best interests of children to grow up in a household with more than one supportive parent, provided that such households are free from acts of domestic or family violence.
(e)The Tribunal notes that Julie Fagalilo has written a submission in which she pleads for the Applicant to be allowed to remain in Australia in which she draws attention to the importance of this for their children.[73] Her submission will be further considered in due course.
(f)TL is aged 17 (and will be 18 in September 2023) and is the only minor child from the marriage with Ms Tamanika. She both provided a letter to the Tribunal and gave impressive oral evidence. She writes that she had an unstable life as a young person with her mother largely absent. She was raised by her grandparents as “wasn’t given access to my dad which I didn’t have a problem with because I didn’t particularly like my dad.” She saw her father on only some three occasions before she moved in with him and the other members of his family when she was 11/12 years of age and her relationship with her mother had broken down. She writes that she “did enjoy some of the time I lived with my dad” but that “a lot of anger was released when he was drunk”. She eventually returned to live with her mother but that “I recently got in touch again with my dad and my other siblings and this was through my younger sister”. In relation to her father, “Our relationship is on its way to becoming a father-daughter bond and if he was to be deported it would ruin what we’ve been trying so hard to achieve.”[74] In her oral testimony to the Tribunal TL confirmed all the details she had written in her submission, indicated that she was not aware of what the Applicant’s plans might be if he were allowed to return to the community and hoped that he would be “a changed man”. The Tribunal gives somewhat limited weight to the interests of TL in relation to this criterion on the basis that her time spent with the Applicant has been limited, he has played a limited part in her life and that it will not be long before she ceases to be a minor child.
(g)The Applicant has referred to nine nephews and nieces. Three of them are children of Julie Fagalilo’s sister and they are aged 16, 14 and 12 years respectively. There are then six children whose ages range from 7 to 14 years. Other than their names which are given in the Applicant’s Statutory Declaration,[75] no details about any of them are provided, nor were they provided in the Applicant’s Person Circumstances Form. In his statement the Applicant writes, “I have a good relationship with them. I am often the favourite uncle. I spoil them and when they sleep over we play games and have family gatherings. I play an uncle role in their lives and I love them and hope I can stay in Australia and be part of their lives.”[76] No further information was provided about these nephews and nieces to the Tribunal and it is not possible to accord any weight to their alleged interests in relation to this criterion.
Conclusion
[67] G-documents at 127.
[68] Ibid at 89.
[69] Ibid at 129.
[70] Ibid at 128.
[71] Ibid at 88.
[72] Ibid at 88.
[73] Ibid at 130-131.
[74] Ibid at 181.
[75] Applicant’s Tender Bundle at 2.
[76] Idem.
The Tribunal accepts, on balance that it would be in the best interests of those minor children who are the sons or daughters of the Applicant for their father to be allowed to remain in Australia.
The Applicant urges that this criterion is of such weight and moment that it should prevail against all and any countervailing considerations. The Respondent concedes that this criterion counts in favour of the Applicant but that it should be given limited weight.[77] It does so on the basis that the children in question have been the victims of, or exposed to, the acts of family violence committed by the Applicant and that there remains, to them (and others) a risk that this behaviour might be repeated. Further, it is put to the Tribunal that the Applicant’s access to and contact with the children has been limited since the imposition of an AVO prohibiting such contact, which AVO remains in place until 31 May 2023.[78] The Ministerial Direction (at 8.3(4)(a) and (g)) require the decision-maker to consider such matters. Finally, attention is drawn to the fact that the NSW Department of Communities and Justice refused to approve visits by the children to the Applicant while he was in custody.[79]
[77] Respondent’s SFIC at [57].
[78] G-documents at 111-4.
[79] Respondent’s Tender Bundle at 7-8.
In short, the Respondent argues that the Applicant has only played a limited role in the life of the children and that, since his incarceration and the issuance of the AVO this has been even more limited. It suggests that this limitation is likely to continue in the future.[80]
[80] Respondent’s SFIC at [56].
The Applicant asserts, in reply that Ms Fagalilo applied on 6 July 2021 for a variation in the AVO,[81] but there does not appear to be any corroborating evidence before the Tribunal on that point, nor is it referenced in Ms Fagalilo’s letter of support of 20 October 2022 as having been effected.[82]
[81] Applicant’s SFIC at [30].
[82] Applicant’s Tender Bundle at 32.
On the other hand, future plans for some form of Parenting Plan to be put in place have been referenced so that the Applicant could have access to the children without breaching the AVO. It is hard to see how this could be achieved as the AVO is specific in preventing such contact.
Moreover, if the Applicant has been in contact with the children at any time since 1 June 2021[83] he will have done so in breach of the specific provisions of the AVO. In his Statutory Declaration of 21 October 2022 he states, I talk to my children very regularly”.[84] A Community Corrections Report of 26 April 2021 records:
“There is currently a no contact AVO protecting Chris' partner and 4 children however Chris said he regularly breaches the AVO as his partner contacts him via phone and to FaceTime the children.”[85]
[83] G-documents at 114.
[84] Applicant’s Tender Bundle at 1.
[85] Respondent’s Tender Bundle at 53.
While it might be understandable that the Applicant wishes to talk to his children on a regular basis, the Tribunal cannot overlook that this appears to be yet another example of the Applicant’s blatant disregard for the orders of the court.
Finally, it is the Applicant’s own evidence that he and Ms Fagalilo have not been in contact for some weeks and so her intentions regarding the re-establishment of a relationship, which would of course, involve the children is problematic and she herself was not called to give evidence in the Tribunal.
While as explained, the Tribunal believes that it would be in the best interests of the minor children for the Applicant to remain in Australia, consideration of all the issues discussed above leads to a determination that this criterion should be given only moderate weight in favour of the Applicant.
The expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia;
(b)where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
(c)non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[86] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[86] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[87]
[87] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
Discussion
Judicial authority has made it clear that it is not for the Tribunal to impose its own assessment of the expectations of the Australian community over and above the clear direction of government/public policy in this regard. Clearly the Applicant’s repeat offending and in particular his family violence offences are very serious matters.
Conclusion
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine and in this instance, given the gravity of the family violence offences, the Tribunal assigns it a significant degree of weight against the Applicant.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[88]
[88] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[89]
[89] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[90] and more clearly supported by Wigney J in FHHM. [91]
[90] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[91] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[92] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[93]
[92] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[93] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[94]
[94] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[95]
[95] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said:[96]
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[96] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
Discussion
No non-refoulment issues arise in these proceedings.
Conclusion
This criterion counts neutrally as far as the Applicant is concerned.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
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 comparator here is not the difference between services or supports available in Australia as compared with those in Tonga, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
Discussion
Nevertheless, the Tribunal notes the information provided by the Applicant about the state of health care facilities in Tonga including the statement that “Hospital and medical facilities are limited. You may need medical evacuation to Australia or New Zealand for even minor issues.”[97]
[97] Applicant’s Tender Bundle at 36.
The Applicant has generally described his health as good but noted that he has had some cardiology issues and a form of heart attack. The Tribunal is alarmed at the way in which the Applicant admits that he no longer takes the medications prescribed for the management of his cardiology issues and the extent to which he is putting himself at risk by so doing.
The Tribunal accepts that the Applicant’s knowledge of the Tongan language is not at a high level of fluency although he was able to compose and send a threating and offensive message to his ex-wife in that language. However, the Tribunal also acknowledges that Tonga recognises English as an official language.
The Applicant claims in his personal circumstances form that:
“Deportees back to the country of my citizenship face extreme hardship from the natives. They are frowned upon and treated as outcasts. Most become beggars if they have no family to support them.”[98]
[98] G-documents at 102.
The Tribunal does not know the empirical basis upon which the Applicant makes such claims, but it does accept that he has no family in Tonga and would not have access to any degree of personal support were he to be returned. He is not entirely unfamiliar with Tongan values and mores having been brought up by his grandparents both in Tonga and Australia and having referred to Tongan cultural norms in describing what he regarded as normative levels of childhood discipling.[99] Although the Tribunal does record that the Applicant himself specifically eschews any connection with Tongan values and writes, “I can state that I have not been brought up in the Tongan way of life”.[100]
[99] Ibid at 98: “Violence was widely accepted in Pacific Island communities from an early stage”
[100] Ibid at 77.
Although the Applicant possesses transferrable skills in terms of construction, warehousing and fork-lift operating experience which would be similarly applicable in Tonga it accepts that his primary skills as a rail certifier would not be relevant in a nation which has no railway system (as is the case in Tonga).
Finally, the Tribunal accepts that the emotional impact of separation from his family would weigh considerably on the Applicant.
Conclusion
The manifest impediments which the Applicant would potentially suffer were he to be returned to Tonga clearly indicate that this criterion weighs significantly in favour of the Applicant.
Impact on victims
Subparagraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
Discussion
There are a number of identifiable victims of the Applicant’s offending behaviours including his partners and his children as well as those anonymous victims of his assaults.
Ms Fagalilo and the children have made representations in support of the Applicant in these proceedings and the Federal Court has made it clear that such representations must be considered and given proper agency by the Tribunal.[101]
[101] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [74].
The question which arises is where, within the framework of the Ministerial Direction, such consideration should be given. It can be given either under the criterion of “impact on victims” or the criterion “links to the Australian community.”
In some respects, it does not matter where the issue is considered as long as: (a) it is considered;[102] and (b) it is considered only under one and not more criteria.[103] As Perram J explained, “in revocation decisions involving domestic violence it will be necessary to consider the impact on a spouse both as a spouse but also as a victim of crime.”[104] He concluded:
Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously.[105]
[102] Idem.
[103] JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 at [223]; Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [21].
[104] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [21].
[105] Ibid at [26]. Citations omitted.
The Applicant in their SFIC makes no submission in relation to impact on victims and the Respondent in theirs (at [68]-[69]) urges the Tribunal to consider the matter under the links to the community” criterion. Given that there is no submission to the contrary from the Applicant, this is the course of action which the Tribunal will follow. The Tribunal also notes that both these criteria are listed as “other” criteria and thus stand on equal footing, as distinct from a situation where one of the optional criteria was “primary” (and hence “generally” to be given greater weight) and thus indicative of where any claim should be considered.[106]
Conclusion
[106] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311at [41]-[42].
This criterion counts neither for nor against the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
Section 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests.
Discussion
There is little doubt that members of the Applicant’s family would be severely impacted by his removal from Australia, although there are some issues which mean that the extent of this impact are less than entirely clear.
Ms Fagalilo has submitted several letters of support for the Applicant which must be given due consideration and weight. Her letter of 5 April 2022 characterises the “incident (which) took place at our house” as “surreal.” She writes that:
“It was a side of him we had never seen or expected. We have forgiven and still love Christopher unconditionally. I never wanted him to be arrested or charged, I just wanted him out of the house.”[107]
[107] G-documents at 130.
In her letter of 20 October 2022, she is more focussed on the need for the Applicant to remain in order to provide support for her children and makes it clear that she would not contemplate relocating to Tonga with them.[108]
[108] Applicant’s Tender Bundle at 32.
Although, Ms Fagalilo is not currently in contact with the Applicant and did not give evidence at the Tribunal, these representations must carry some weight.
Other than the letters of support from the Applicant’s children and the oral testimony of TL, which have already been considered above in a separate consideration, oral testimony was given by another (adult) daughter, OL, again in support of her father and going further to say that should he be released into the community she and her family would immediately provide him with accommodation.
Letters of support for the Applicant were also provided by his mother-in-law; his cousin and several former work colleagues, one of whom, Mr Aaron Swain gave oral testimony at the hearing.[109] All attested to the Applicant’s good character and work ethic, however none addressed the issues of his offending behaviour and indeed Mr Swain was effectively unaware of any such details whatsoever.
[109] G-documents at 131-139 and 166-177.
There is no doubt that the Applicant has spent most of his life in Australia and that, throughout that period he has maintained a constant level of productive employment. Indeed, the evidence is that his professional skills (as a track certifier) are highly regarded and that potential employers in Australia would readily seek to offer him employment.
Conclusion
Consideration of this criterion involves two distinct elements, one related to the Applicant’s ties to the community at a general level and the other related to impacts upon business activities.
In relation to the first, the Tribunal finds that the Applicant has strong and meaningful ties to the Australian community and that his removal would impact those ties. It thus finds that this criterion counts significantly in his favour.
Direction 90 requires consideration of the impact on business if a visa is cancelled and provides that the criterion “would generally only be given weight where the visa cancellation would have an impact on a major project or delivery of a major service” (at 9.4.2(3)).
In the matter of Singh, Middleton J warned against misconstruction of this criterion to narrow it entirely to the consideration of matters involving major projects of delivery of important services. His Honour stated:
I can immediately say that the correct interpretation of the Direction is not to focus only on the delivery of a major project or delivery of an important service in Australia. The focus has to be on the impact on Australian business interests if the non-citizen’s visa is cancelled.[110]
[110] Singh v Minister for Home Affairs [2019] FCA 905 at [10].
This point was emphasised in a recent decision of the Federal Court where Rangiah J stated:
Paragraph 9.4.2 of Direction 90 commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia…”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.[111]
[111] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68]. Emphasis in original.
Although the Applicant has specified skills which are beneficial to the Australian community as a whole and has references attesting to his value as an employee, the Tribunal finds that they are not of such a nature as to attract, on their own, a finding on this criterion more than moderately in favour of the Applicant.
To the extent that in considering the overall assessment of this criterion the Tribunal has held it to be significantly in favour of the Applicant, nothing further can be gained in this respect by separate or additional weighting of this business interest aspect of the criterion.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[112]
[112] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[113]
[113] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
In this instance there have not been any other specific considerations placed before the Tribunal, although it is deeply conscious of the exhortation of Chief Justice Allsop in Hands to be particularly mindful of the impact of its decisions on people, including the Applicant and members of his family.[114]
[114] Hands v Minister for immigration and Border Protection [2018] FCAFC 225 at [3].
The final calculus
Returning to consideration of the weight which the Tribunal has ascribed to the various criteria in the Ministerial Direction:
(a)protection of the Australian community weighs significantly against the Applicant;
(b)family violence considerations weigh significantly against the Applicant;
(c)the best interests of minor children weigh moderately in favour of the Applicant;
(d)expectations of the Australian community weigh significantly against the Applicant;
(e)non-refoulement obligations weigh neutrally in relation to the Applicant;
(f)the extent of impediments if removed weigh significantly in favour of the Applicant;
(g)the impact on victims weigh neutrally in relation to the Applicant; and
(h)the Applicant’s links to the Australian community weigh significantly in favour of the Applicant.
The Ministerial Direction indicates that “Primary considerations should generally be given greater weight than the other considerations” (at 7.2), with the operative word being “generally”. In that regard the calculus is clearly against the Applicant.
Although the overall calculus weighs significantly against the Applicant, what counts most heavily for this Tribunal, in all but a determinative sense, is the aspect of family violence. Ministerial Direction 90 replaced Ministerial Direction 79 in April 2021. Although there were several differences between the two Directions, the most significant of these was to introduce into the criteria for consideration the factor of “family violence”. This was a deliberate act of public policy indicative of the abhorrence which the Australian community holds for acts of family violence and its condemnation of those who commit such acts. Such clear statements of public policy, especially when embedded in directions which are binding upon decision-makers are not to be ignored, they must be given full faith and credit. Most recently the Australian Government has produced its National Plan to End Violence against Women and Children 2020 – 2032 which calls for the elimination of gender-based violence in one generation noting that “One in 3 women has experienced physical violence since the age of 15, and one in 5 has experienced sexual violence.”
For the Tribunal to ignore the public policy made explicit in the terms of the Ministerial Direction as they relate to the seriousness of family violence offences would not be consonant with its responsibilities as part of the spectrum of “good government” clearly expected of it.[115]
[115] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307 at 334-335.
Perpetrators of gross acts of family violence must expect to be held to account for their actions and cannot expect the Australian community to excuse or ignore them. It is of course explicitly not the role of the Tribunal to deal with matters of punishment or retribution, that is entirely a matter for the Courts. The Tribunal is required make its decision based on the Ministerial Direction and judicial authority, both of which are clear when it comes to dealing with acts of family violence.
Having considered all the requirements of the Ministerial Direction, this Tribunal has not found that there is another reason for the Applicant’s visa cancellation to be revoked.
DECISION
The decision under review is affirmed.
I certify that the preceding 174 (one hundred and seventy -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.....................................[sgd]...................................
Associate
Dated: 9 November 2022
Date(s) of hearing: 26 October 2022 Solicitors for the Applicant: Ms M Mamarot, South West Migration and Legal Services Solicitors for the Respondent: Ms C Lewis, Australian Government Solicitor
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