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

[2021] AATA 1826

Leota and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1826 (21 June 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2047

Re:Molipopo Leota

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:21 June 2021

Place:Sydney

The reviewable decision made on 30 March 2021 is set aside and in substitution, there is another reason why the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa should be revoked.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – whether there is another reason to revoke the visa cancellation – Direction No. 90 – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children in Australia – strength, nature and duration of ties – extent of impediment if removed – decision under review set aside

LEGISLATION

Crimes (Sentencing Procedure Act) 1999 (NSW) Part 2 Division 2

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

CASES

FYBR and Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

21 June 2021

Introduction

1. The Applicant, Mr Leota, was born in Samoa in 1994. He migrated to New Zealand with his brother in about 2006 and arrived in Australia in January 2010. He is a citizen of both New Zealand and Samoa. His Class TY Subclass 444 Special Category (Temporary) visa (the visa) was cancelled on 27 August 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he had a “substantial criminal record” under s 501(7)(c) of the Act and consequently did not pass the character test in s501(6)(a) of the Act, and he was serving a term of imprisonment on a full-time basis in a custodial institution for an offence against a law of Australia (the mandatory cancellation decision).

2. He has a substantial criminal record because he was sentenced to imprisonment for a period of 12 months or more on 6 May 2014 and on 5 December 2018.  Both sentences were to be served by way of intensive correction orders (ICO).[1]   On 6 May 2014 he was sentenced to 18 months imprisonment and on 5 December 2018 to 12 months imprisonment.

   [1] Crimes (Sentencing Procedure Act) 1999 (NSW) Part 2 Division 2 Custodial Sentences.

3. He applied unsuccessfully to have the mandatory cancellation decision revoked.  He has applied to the Tribunal for a review of the decision not to revoke the mandatory cancellation of his visa which was made on 30 March 2021 (the reviewable decision).

   The issue to be determined

4. Section 501CA(4) of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under s 501(3A) of the Act. They are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:

   (i)the Applicant made representations in accordance with the invitation issued under s 501CA(3);[2] and

   (ii)the Applicant passes the character test (as defined in s 501(6));[3] or, if the Applicant does not pass the character test, that there is another reason why the cancellation decision should be revoked.[4]

   [2] The Act s 501CA(4)(a).

   [3] The Act s 501CA(4)(b)(i).

   [4] The Act s 501CA(4)(b)(ii).

5. The Applicant made representations as required by s 501CA(4)(a) of the Act.

6. It is not in dispute that the Applicant does not pass the character test.  The issue to be decided is whether there is another reason why the original decision should be revoked.

   Direction 90

7. The Minister has given written directions pursuant to s 499(1) of the Act in Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90), which came into effect on 15 April 2021.  That is the Direction which must be applied in this case.  The reviewable decision was made when the previous Direction 79 was in force.

8. The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task.  Part 2 of Direction 90 is about exercising the discretion.  It sets out primary and other considerations and the factors to be considered in each case. 

9. The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:

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

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

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

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

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

10. Clause 7 of Direction 90 gives directions about taking the relevant considerations into account:

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

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

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

11. Each relevant consideration addressed by the parties will be considered in turn.

    Primary considerations

    Protection of the Australian community

12. The first primary consideration is protection of the Australian community from criminal or other serious conduct.  Direction 90 states:

    (1)  When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[5]

    [5] Clause 8.1(1).

13. Clause 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:

    (a)the nature and seriousness of the Applicant’s conduct; and

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

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

14. The Applicant arrived in Australia with his brother in 2010.  He committed his first offence in 2013. 

15. I address the nature and seriousness of the Applicant’s conduct to date by setting out the convictions from the most recent to the earliest and addressing each in some detail.  Serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.[6] 

    [6] Direction 90, paragraph 4(2).

16. On 13 May 2020, the Applicant pleaded guilty and was convicted of the following offences that were committed on 29 November 2019:

    Supply prohibited drug <=small quantity-T2;

    Deal with property proceeds of crime <$100,000-T2;

    Supply prohibited drug > indictable & < commercial quantity-T1.

17. The Applicant was sentenced to an aggregate sentence of seven months imprisonment, with indicative sentences of two months, two months and four months respectively.

18. The prosecutor conceded that the Applicant had been forthcoming with the police.  The sentencing magistrate referred to his first offence in 2013 and observed that there was no other offending until 2018 when “everything is in a bit of a mess, 2018, 2019 things went really, really wrong”.  She said that the Applicant had been a hard-working person who wanted to support his family, he was under stress because his business went bad, but it was not a small amount of drugs and there was no alternative to full-time custody.  He was already in custody for contravening AVO and stalking offences (discussed below).  She thought that the insight he had shown talking to the doctor and the Community Corrections person showed that he had excellent prospects of rehabilitation.  She observed that it had been a “bad, bad period of life and from this you have learnt and from this you will come out and start afresh”.  She found the objective seriousness of the offence around the low to mid-range but the supply offence carried 15 years or more.  He had breached an ICO on conditional liberty.

19. On 22 April 2020, the Applicant pleaded guilty and was convicted of offences committed on 21 April 2020:

    Contravene prohibition/restriction in AVO (Domestic);

    Contravene prohibition/restriction in AVO (Domestic);

    Stalk/intimidate intend fear physical etc harm (domestic)-T2.

20. The aggregate sentence for these offences was seven months imprisonment with indicative sentences of two months, two months and four months respectively.

21. The Apprehended Violence Order (AVO) had been made on 3 October 2018.[7]  On 21 April 2020 the Applicant breached the AVO by attending his partner’s residence and intimidating her.  He became agitated and a heated argument broke out.  Police attended but could not raise anyone.  The Applicant returned while his partner was away and sent a text message threatening to kick the door off its hinges if she did not answer.  She was afraid and called triple-0.  When police arrived, they found that the door was locked and secured.  The Applicant came when police called out and he was arrested.

    [7] The evidence suggests that an interim AVO was made on 16 August 2018 and a final AVO on 3 October 2018.

22. The sentencing magistrate observed that the Applicant’s criminal record was not lengthy but included serious matters, the most serious being the 12 month ICO for the 2018 stalk/intimidate, damage property, and assault occasioning bodily harm offences (discussed below) which expired on 4 December 2019.  The Applicant was on bail on condition that he live at specified premises, comply with a curfew and be of good conduct.  I infer that he was on bail in relation to the drug offences.  The Sentencing Assessment Report said that he was depressed due to his financial situation and had previously been on medication.  He had been seeing a psychologist.  He had previously done community service work and was prepared to do it again.  He was assessed at medium/low risk.  The sentencing magistrate referred to a psychological report which set out his background in Samoa and New Zealand, including dangerous hidings as a young person, his relationship with his partner, that they have two children together, his financial struggle, that he had a large debt to the Australian Tax Office, and that he was from a devoutly Christian family and took his child to church.

23. The psychological report stated:

    His cognitive capacity appeared questionable due to poor comprehension and restricted articulation although he learnt English later on in his youth so to speak.

24. The report discussed his psycho-social stresses, second son, failed business and financial hardship.

25. The sentencing magistrate also took into account that the Applicant had recently suffered the sad death of his uncle who had raised him and whose funeral was imminent, that he  was not in his right mind and was depressed and that he had work to start.  However, the significant issues were that the ICO for domestic violence assault had just finished on 5 December 2019, he had flagrantly breached the AVO that had been in force for more than a year, and he was on conditional bail. 

26. The magistrate found that the breach of bail had been established, bail was revoked and refused. 

27. On 5 December 2018, the Applicant was convicted of the following offences committed on 12 August 2018:

    Stalk/intimidate intend fear physical etc harm (domestic)-T2;

    Destroy or damage property <=$2000 (DV)-T2;

    Assault occasioning actual bodily harm (DV)-T2.

28. In the case of the first and third offences, the Applicant was sentenced to a 12-month ICO commencing 5 December 2018 and concluding 4 December 2019, supervised by Community Corrections Services.  Additional conditions were waived at Court.  He was to comply with the AVO. 

29. The Applicant was fined $300 for the property damage offence.

30. Ms Calo, the Applicant’s partner and the victim of the offences, applied to vary the AVO which had been issued on 3 October 2018 by removing the non-contact condition.  The matter was not heard on that day.  Their oldest son was a new-born at the time. Ms Calo has three children from two previous relationships.

31. The sentencing magistrate took account of a pre-sentence report, a report of a forensic psychologist, the report of the Applicant’s treating psychologist, Gillian Hawkins, and a letter from Anglicare.  The Applicant had pleaded guilty straight away.

32. The circumstances of the offence were summarised by the magistrate.  The Applicant and Ms Calo had been in a relationship for 14 months.  She was 34 weeks pregnant with his child.  She had bought a new drink bottle for one of her children from an earlier relationship that caused the Applicant to be angry.  He picked up a photograph frame, approached her and said, "I'm not happy, I should smash you with this".  He then struck her to the left side of her face with the photo frame which caused her to feel pain and bruising and grazing to her left eye and cheek area.  He caused the glass in the picture frame to smash.  The risk of a catastrophe was substantial; if that glass had gone into her eye and permanently damaged it or blinded her, he would have gone to prison for a number of years.  He picked up a piece of broken glass, took hold of the victim on the lounge and said, "I'll kill you and the kids". The victim asked the accused to calm down.  He looked at her pregnant stomach and said, "Well not now, but very soon I'm going to kill you and your kids".  She was very fearful for her safety and the safety of her children.  Because she was so fearful, she did not contact police until the next morning, after he had gone to work.

33. The sentencing magistrate took into account the 2014 ICO, finding that the Applicant’s account to a psychologist at that time was self-serving because the offence must have been very serious given the 18-month ICO.  The Applicant had said that his then girlfriend had been drunk at a big party when a female went to assault his girlfriend, he had intervened to try and separate them, and the other female was hit accidently by him.  His oral evidence in these proceedings was similar.

34. The factors persuading the magistrate not to sentence the Applicant to full-time imprisonment included his immediate plea of guilty, the steps he had taken to rehabilitate himself including getting psychological assistance and undertaking anger management, that he attended church and had been spoken well of by church members, that he was a good worker and ran a business which employed people. 

35. On 22 May 2018, the Applicant was convicted of Drive motor vehicle while licence suspended – 1^st off, fined $300 and disqualified from driving for three months from that date.

36. On 6 May 2014, the Applicant was convicted of Reckless grievous bodily harm – T1 and sentenced to an intensive correction order for 18 months, commencing that day and concluding on 5 November 2015.  The offence was committed on 26 January 2013 at around 12:30 am.

37. The following is taken from the New South Wales Police Facts Sheet.  There was an incident between two groups of people who encountered each other in an alley way.  The Applicant’s then girlfriend was involved in a physical altercation with another girl, the victim.  The Applicant struck the victim to the face.  She started to walk away.  The Applicant and his girlfriend followed her.  The Applicant struck the victim again to the left side of the face causing her immediate and immense pain.  She lost her vision and her nose started to bleed heavily.  The victim went to her boyfriend’s address and was conveyed to hospital.  As a result of the Applicant’s action, the victim suffered a broken noise and multiple fractures to her left cheek and eye socket.  She required corrective and cosmetic surgery for the injuries.  When arrested, the Applicant said that he stepped into the fight when the victim seemed to get the upper hand in the fight.  As a result of being struck in the chest, he struck the victim to the face with a bottle which was in his hand.  He denied striking her twice. 

38. The following crimes committed by the Applicant are viewed as very serious by the Australian Government and the Australian community, having regard to the matters set out in cl 8.1.1(1)(a) of Direction 90: 

    ·the violent crime committed on 26 January 2013 against a woman resulting in significant injuries to the victim;

    ·the crimes of a violent nature committed on 12 August 2018 against a pregnant woman which were acts of family violence, and

    ·the crimes committed on 21 April 2020 which were acts of family violence. 

39. The crimes committed on 29 November 2019 involving drugs are viewed as serious by the Australian Government and the Australian community.

40. The sentences imposed in each case reflect the seriousness with which the court considered the offence and support the above findings.

41. The frequency of the Applicant’s offending increased in the period 2018 to 2020 in the following circumstances.  At the time of the 2018 family violence offences, he was 24 years of age, running a business, awaiting the birth of his first child, awaiting the arrival of his biological mother and adopted sister whom he had sponsored to come to Australia from Samoa, and he was financially supporting Ms Calo, her three children, and members of his adopted and biological family.  In 2019, he was 25 years old, his business failed, and his second son was born.  In April 2020, he was 26 years old, on bail for the drug offences, the subject of the AVO and trying to keep in contact with his two children.  He was under emotional and financial stress.  It is unlikely that such a constellation of circumstances would occur in the future.  I do not consider that the offending during the period reflects a trend of increasing seriousness of offending in the future.

1. I take account of the 2018 driving offence.  The police report stated that the Applicant advised the police that his licence was suspended.  His oral evidence was unclear whether he knew his licence was suspended before the police told him.  The terms of the offence do not indicate whether he knew or not.  I am not prepared to find on the evidence that he did know.

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

2. Direction 90 requires me to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[8] 

   [8] Clause 8.1.2(1).

3. The Applicant said that he was drunk at the time of the 2013 offence but stopped drinking then.  

4. The Applicant’s offending against women shows that if the Applicant commits further offences, he may cause serious physical and psychological harm to victims, and importantly, to Ms Calo, his partner, if their relationship continues.   

5. If the Applicant committed further drug offences, the nature of the harm may be serious physical and psychological harm.  The long-term adverse health effects of cocaine are described in the Australian Institute of Health and Welfare publication Alcohol, tobacco & other drugs in Australia, dated 16 April 2021.

6. The Respondent contended that there was a moderate risk that the Applicant would reoffend.  The Applicant contended the risk was low.

7. In support of its contention, the Respondent pointed to the fact that the Applicant and Ms Calo have resumed their relationship following the expiry of the AVO and intend to reside together when the Applicant is released.

8. Ms Calo set out in detail the circumstances at the time of the 2018 domestic violence offences. She and the Applicant had moved into a brand new home.  She was pregnant with their first child.  He had started a business seven months earlier.  His biological mother was due to fly in the next week and to stay for three months.  Ms Calo was not happy about that because she thought she would cause trouble and suck him dry of money.  His biological mother had decided to bring his nine year old adopted sister.  It cost a lot of money to bring them over when he was trying to establish a business.  His English was a barrier to his communicating his feelings.  Ms Calo could see he was depressed and anxious.  They went to a doctor who referred him to a psychologist who put him on anti-depressant/anti-anxiety tablets which were effective but made him light-headed causing him to fall off a roof twice.  He stopped taking them.

9. The Applicant’s evidence was that the photograph that he threw was an ultrasound of their baby which only had Ms Calo’s name on it.

10. In relation to the breach of the AVO, Ms Calo described how it arose from a misunderstanding about his having access to the children as her home while she was absent because of text messages sent by others. 

11. She and the applicant “facetimed” each other after the AVO ended. She described why she thought he had matured and how their relationship was stronger because it is based on respect, honesty and trust that were lacking in their previous relationship.  She noted the various courses he had completed and described what he was doing to improve his English.  She believes he is remorseful for his offending, and that he no longer blames his childhood for his behaviour but takes responsibility for his actions. 

12. The Applicant acknowledged that there was no excuse for the domestic abuse charges.  In his Personal Circumstances Form dated 18 September 2020 and during his oral evidence he blamed the COVID-19 situation for finding difficulty securing employment leading to his drug offences in 2019.  Even when I pointed out that he committed the offences before COVID-19 emerged, he did not seem to understand that what he was saying could not be correct.  I find that he was suffering financial difficulties at the time, not because of COVID-19 but because the business he established was failing, as the Applicant told a psychologist before sentencing for the offences.[9]  As his former employer said during his oral evidence, there was not much work in the construction industry at the time.   

    [9] G15 p 123.

13. The Respondent pointed to the Applicant’s failure to mention in his account of the 2018 offence that he had picked up glass and threatened to kill her and her children as demonstrating that he failed to take responsibility for his actions.

14. A forensic psychologist prepared a report dated 29 September 2018 for tender to court in relation to the 2018 offences against Ms Calo.  The Applicant related seeing a general practitioner at the suggestion of Ms Calo two months before to obtain medicine for anger.  He was prescribed a medicine which he took despite getting headaches.  Since stopping it, he had appreciated how effective it was.  The general practitioner confirmed to the forensic psychologist that she had last seen the Applicant on 8 June 2018.  The forensic psychologist also liaised with the psychologist who the Applicant had consulted.  She had seen the Applicant twice, most recently on 21 August 2018. 

15. The forensic psychologist also spoke to the wife of the pastor of the church the Applicant attended.  She confirmed that he had regularly attended church every Sunday for the past five years and engaged in youth fellowship twice monthly.  He was a very helpful active mentor for young people.  They were aware of his court case.  The forensic psychologist wrote:

    With respect to the index offence, it appears that there was a trajectory of factors that contributed to the offending. In addition to the significant amount of financial pressure placed on young shoulders as well as the many individuals who remain dependent on Mr Leota, some core beliefs and values held by Mr Leota appeared challenged with respect to his views that he: a) felt disrespected by Nichole with her reportedly changing their unborn baby’s surname and then displaying this in the frame (which he broke during the index offence), especially in light of his continual (financial) support towards Nichole and her children; b) believed that Nichole’s reported priority of purchasing a drink bottle rather than something for their baby. Finally, Mr Leota’s poor English proficiency likely decreased his distress tolerance insofar as being unable to articulate himself in that emotional moment.

16. The forensic psychologist prepared a subsequent report dated 21 February 2020 at the request of the Applicant’s solicitor to present to court in relation to the drug offences.  She concluded that it appeared likely that the Applicant satisfied DSM-5 diagnostic criteria for Moderate Major Depressive Disorder with Anxious Distress at the time of the offence and at the time of assessment caused by a combination of factors including:

    a) the birth of a second son (coupled with the value he places on being an involved father as opposed to an absent one),

    b) the loss of his business coupled with significant accumulated debts (totalling $90k),

    c) financial hardship (including being unable to provide basic essentials such as baby formula and rent) as well as limited assistance (i.e. Centrelink) afforded to him,

    d) difficulties obtaining consistent and meaningful employment, despite (reported) daily attempts to find work and having qualifications behind him.

17. The Applicant has completed a number of courses since he began offending in 2013.  In 2014 and 2015 he completed anger management courses.  He completed 20 out of 20 sessions of an Anglicare program S.T.O.P Men’s Behaviour Change Group Program relating to domestic abuse in early 2019.  He participated in a number of courses while in immigration detention in the period February to March 2021:

    ·Managing Anger (16/02/21);

    ·Managing Anger (23/02/21);

    ·Managing Anger (9/03/21);

    ·Dads Connecting With Kids (23/02/21);

    ·Dads Connecting With Kids (9/03/21);

    ·Dads Connecting With Kids (23/03/21);

    ·Personal Development (February 2021);

    ·Lifeskills Drug and Alcohol Education (March 2021);

    ·Personal Growth and Behaviour Change Program (March 2021). 

18. Ms Calo and the Applicant emphasised the importance of improved communication between them.  She said that the Applicant’s English had improved while he was in gaol and immigration detention.

19. Apart from Ms Calo, the Applicant’s former employer, two friends, his sister-in-law and a cousin provided written and oral evidence.  In summary, they did not have a detailed understanding of the Applicant’s offending, thought his offending was out of character, and regarded him highly.  He had expressed his remorse to them. They were all very genuine and wished to assist the Applicant if he returns to the community.  Their friendship and support did not prevent the Applicant from offending.  It seems that the Applicant did not approach his former employer or his friend who was a plumber for employment when he was in financial difficulty before the drug offences.

20. The Applicant is deeply ashamed of his offending and remorseful.  He has experienced gaol for the first time and does not want to go back.  He does not want to lose Ms Calo, his children and family.  He has taken steps to address his offending while in immigration detention.  He had undertaken courses previously in 2014 and 2019 and reoffended. However, I accept that he has now developed greater insight than he had before.      

21. I am satisfied that there is a low risk that the Applicant will commit another drug offence or a violent offence against a woman who is not family member, and that there is a low to moderate risk that he will commit a family violence offence.

22. The consideration the protection of the Australian community from criminal or other serious conduct weighs significantly against revocation of the Applicant’s visa cancellation.

    Family violence committed by the non-citizen

23. The Applicant has committed family violence offences in 2018 and 2020, as detailed above.  The offences involved actual and threatened violence.  The Applicant accepts responsibility for his conduct and understands that he may lose Ms Calo if it is repeated.  He has participated in the courses listed above to address his conduct.  There is a low to moderate risk that he will reoffend.  If he does, Ms Calo is a likely victim.

24. The Respondent raised at the hearing an alleged family violence incident for which the Applicant was not convicted, referring to cl 8.2(2)(b) of Direction 90.  The incident related to text messages sent on 26 May 2019 to the Applicant’s aunt threatening to kill her and her children as reported by police.  The Applicant’s brother’s girlfriend admitted to the police sending the messages.  At the hearing she said she only sent ones in the afternoon and not those in the morning.  

25. The police report states that they explained to the victim that although the Applicant owned the telephone, the police had to prove that the Applicant had sent the messages which was not possible.

26. I am not satisfied that the Respondent’s claim that the Applicant was involved in sending the texts, specifically those sent in the morning, amounts to more than an allegation.  I am not satisfied that there is information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence in relation to the alleged incident, and the Applicant has been afforded procedural fairness.[10]  He and his sister-in-law were questioned about the incident but the police were not available for cross-examination.  The text messages do show that the Applicant was under pressure to assist financially his biological mother who was in Australia and was not doing so.

    [10] Direction 90 cl 8.2(2)(b).

27. This consideration weighs significantly against revocation of the visa cancellation decision.

    Best interests of minor children

28. The Applicant has two sons with Ms Calo who were born in 2018 and 2019. The oldest child was diagnosed with level 3 autism in November 2020.  He requires early intensive therapies to have the best life outcomes.  Ms Calo cannot afford those therapies but believes they could afford them if the Applicant were released and working.  Their son is currently on an 18-month long waiting list for assessments for speech, occupational therapy, and child psychology.  She described their son’s reaction to his father during a visit to the immigration centre.  Their son only makes eye contact with his mother.  During the visit, their son looked at his father when he heard his voice, tried to kiss him through the glass, hitting the glass to get to him, and ran around trying to get to him past the security guard.  She believed that their son remembered his father whom he had not seen for a year.  They facetime at least ten times every day.  Their son smiles, laughs, and kisses his father on the screen, and looks behind the phone for his father.  Ms Calo believes the Applicant and their elder son have a special bond.  He is also a heavy child.  The Applicant’s physical assistance in the future will be important.

29. Ms Calo had tried to get an appointment for their younger son to visit the Applicant but that was prevented by the Applicant’s removal to a distant immigration centre and an outbreak of COVID-19. Their younger son also facetimes his father, saying “dad dad dad”, smiling and laughing as soon as he sees him.

30. There are no court orders relating to the children.  Prior to going into custody in 2020, the Applicant had contact with his children every weekend and during the week when he had no work.  They occasionally stayed overnight on the weekend.  He changed their nappies, bathed and feed them, played with them and took them for walks.  He provided for them financially.   

31. The Applicant wrote in the Personal Circumstances Form that if his visa were revoked, they would not have personal contact with him, would not get to know him, and because of their ages would be unable to visit him in New Zealand or access any other means to contact him.  They would also not have an appreciation of their Samoan cultural heritage.

32. In her most recent statement dated 12 May 2021, Ms Calo wrote that she and the Applicant had recently spoken about the possibility of his being deported and decided that she and their two children and her ten year old son would move too.  They decided that having no support in New Zealand would have a negative effect on them and the children and so decided the best option would be to move to Samoa where his biological parents live.  Ms Calo said that their oldest son really needs specialists and therapies but she thought the most important thing for him and his younger brother was to be raised by both their parents in a supported family.  That means Ms Calo would leave her older two children who are university students who live at home and to whom she is very close which breaks her heart.  She has spoken to her 10 year old son about moving to Samoa.  He is scared and sad about moving to another country with another language, culture and making friends, but understands it might be the only way to stay together as a family.  He has had no contact with his biological father for four years and considers the Applicant as his step-dad.  She emphasised that she has no support in Australia and had brought up her three older children by herself.

33. In previous written evidence, Ms Calo had related how the Applicant had been mentally, emotionally and physically abused as a child.  He would sob uncontrollably because of his recollections.  She wrote that he worked very hard with his entire pay being given to his adopted parents who would send most of it to his biological parents in Samoa and give him an allowance of $50 per week.  After he moved in with her, his biological parents started calling him for the first time since he arrived in Australia asking him to send money every week.  The sums varied from $200 to $250 and sometimes $500 or $1,000.  If he did not send it, they harassed him up to 30 times per day or got other family members to call him.  She wrote that he had recognised that his biological parents were a trigger for him and had decided to completely remove them from his life.

34. She wrote that that she would be unable to fly to New Zealand to visit the Applicant for financial reasons and because of her oldest son’s autism he would have to be sedated for the flight.

35. I am not persuaded by Ms Calo’s recent evidence about the family moving to Samoa.  It is inconsistent with her previous evidence set out above, and her evidence about the advantage of having the Applicant released and working to pay for therapies their oldest son needs for his autism.  The evidence is silent about the availability of necessary therapies in Samoa.  Ms Calo seems to accept that they are not.  Her recent evidence is inconsistent with the Applicant’s repeated reports that that life is hard there and about the familial violence he suffered.  He does not have happy memories of growing up there.  I infer from the Applicant’s history of migration and supporting his Samoan relatives financially, that educational and economic conditions are not good there.  His evidence does not suggest that he would have support from his relatives if he returned.  Moving there would not be in the best interests of either child.

36. I found Ms Calo’s reasons for moving to Samoa but not New Zealand unpersuasive when conditions in New Zealand are generally not dissimilar to those in Australia.  However, I do not know what she will do.

37. The Applicant has shown that he is a devoted father to his two sons.  They are very young.  He has and will support them financially to the extent he is able.  It would be in the best interests of the oldest child that the Applicant have physical contact with him. The Applicant’s physical support would assist Ms Calo to care for him.  He has a bond with the Applicant.  Communication by facetime  or other digital means is not satisfactory.  The child deserves the best possible care to maximise his development and quality of life.  There is no detailed evidence about the availability of care available for autistic children in New Zealand.  A general assertion that medical support in New Zealand is similar to that in Australia is insufficient.

38. It is in the best interests of the younger child to grow up with his father physically present.  He is very young.  A digital relationship would not be in his best interests.

39. The relationship between Ms Calo and the Applicant after more than two years without contact is untested and it may not survive.  That is a matter that reinforces my view that the Applicant should be available to have a physical presence in the lives of his children.  That he has not been present in their lives since his arrest on 21 April 2020 is not a reason that he should not be present in their lives in the future.  That Ms Calo has played the parental role in that period does not mean that the children should not have the Applicant playing a parental role in their lives over the next 16 to 17 years.

40. There is a possibility that the Applicant may commit a family violence offence against Ms Calo to which the children could be exposed to.  That is outweighed by the benefit to the children of having the Applicant physically present in their lives.  

41. There was some evidence about the financial support the Applicant had provided and may provide in the future to Ms Calo’s ten year old son and that he has been a step-father to the child.  Ms Calo has been and will continue to be the primary carer for the child.  The Applicant’s threat to kill the child in 2018 was made in anger.  However, the child is not his biological child and may be exposed to family violence if the Applicant reoffends against Ms Calo. On balance, this child’s best interests are a neutral consideration.

1. The Applicant has three nephews and three nieces who are minors. Before he was in custody, he had contact with them at weekends, playing sport and “trying to be positive role model”. He claimed that a negative decision would be a loss for them of an uncle and a male and father-figure to whom they often referred as “dad”.  He does not have a parental role in their lives, however, I consider that it is in their best interests that the Applicant remain in their lives in Australia.

2. Cumulatively, the best interests of the above children weigh overwhelmingly in favour of revocation of the mandatory cancellation of the Applicant’s visa.

   Expectations of the Australian Community

3. Clause 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.  The direction further states that 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 should not hold a visa.

4. The Full Court of the Federal Court of Australia considered clause 11.3(3) of Direction 65, which is analogous to cl 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension cl 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.

5. The question for the decision-maker is the weight to be attached to this consideration.

6. The Applicant has failed to meet the expectations of the Australian community to abide by Australian law, having regard to the principles outlined in the Direction and the seriousness of the Applicant’s offending.

7. The Respondent argued that those principles included worker exploitation (cl 8.4(2)(f)), because the Applicant had not paid superannuation benefits.  This issue was not explored in detail.  Other relevant matters were, including acts of family violence (cl 8.4(2)(a)) and the commission of serious crimes against women (cl 8.4(2)(c)). 

8. This consideration weighs significantly against revocation of the Applicant’s visa.

   Other considerations

   Extent of Impediments if removed

9. The parties seemed to assume that it was most likely that the Applicant would return to New Zealand if removed from Australia.  It is also possible he may be removed to or choose to return to Samoa.

10. He left Samoa in about 2008 and New Zealand in 2010, 11 years ago, having spent about four years there.  The evidence does not suggest that his physical health is an impediment.  He has suffered mental health conditions at the time of the 2018 and 2019 offences.  His first language is Samoan.  He was assisted by an interpreter during the hearing.  Although he has lived in English-speaking countries since 2008 and qualified as a roof tiler, his understanding of English is not good.  My observation of the Applicant during the hearing is consistent with the forensic psychologist’s assessment in her report dated 21 February 2020, which states that his cognitive capacity appeared questionable due to poor comprehension and restricted articulation although he learnt English as a teenager.  Ms Calo gave evidence that his English has improved since he has been in gaol and immigration detention. It must have been worse than I observed before that.  That linguistic barrier will be similar whether he is in Australia or New Zealand except he would have his Samoan family and church in Australia.  Despite his language difficulty, he has worked hard and was highly regarded by his previous employer who would provide a reference for the Applicant if he were removed.  He would be able to work as a roof tiler in New Zealand and possibly Samoa. 

11. He will not face any substantial language or cultural barriers if removed to either Samoa or New Zealand.  The social, medical, and economic support available to him in New Zealand would be similar to that available to him in Australia.  The evidence does not suggest that there is similar support available in Samoa. 

12. The Applicant does not have family support in New Zealand, although he listed a number of relatives who live there.  

13. At the hearing, Ms Calo and the Applicant’s evidence was that the Applicant’s biological father was living in Samoa at that time.  He moves between New Zealand and Samoa.  The Applicant said that his aunt who looked after him in New Zealand had moved to Melbourne.  The evidence of both was that his biological mother lives in Samoa.  The weight of the evidence is that as a child, the Applicant was abused physically and emotionally variously by his parents and/or his grandfather and witnessed violent arguments between his biological parents.  He was sent to New Zealand and then Australia for part of his high school education, to learn a trade, work and provide financial support for his family in Samoa as the eldest son.  Given that history, I infer that economic opportunity in Samoa is limited.  His ability to provide for his immediate family would be limited, as would his ability to provide for his biological parents, who would be unlikely to welcome him back and may be hostile.    

14. For the reasons given earlier, I found Ms Calo’s most recent evidence that the family would return to Samoa unpersuasive.  Whether she would join the Applicant in either New Zealand or Samoa is uncertain.  They have not lived together since around October 2018.  They were not in communication until the end of the AVO around two years later.  Their relationship is untested.  The presence of Ms Calo and the children in either country may be a support to the Applicant but may also be a burden as he seeks to find housing and a job to support them.  If Ms Calo and the children did not return with the Applicant, that would be effectively permanent removal from the children which would have a significantly detrimental impact on his mental health. 

15. Apart from the mental health issue, the Applicant may face some initial difficulties, but the evidence does not demonstrate that he would face any significant impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens) if removed from Australia to New Zealand, taking into account the matters set out in Direction 90.[11] 

    [11] Clause 9.2.

16. There is little evidence as to basic living standards generally available to other citizens of Samoa.  If the Applicant returns there, relations with his biological parents may impact upon his mental health adversely.  I accept that he would find it very difficult to adjust to life there which he said was very different from life in Australia.

17. As the Respondent conceded, this consideration weighs in favour of the Applicant.  On balance, taking account of a possible return to either Samoa or New Zealand, I give this consideration moderate weight. 

    Links to the Australian community

18. This consideration requires consideration of the strength, nature and duration of ties and the impact on Australian business interests.  Australian business interests are not relevant in this case.

19. The Applicant has lived in Australia for 11 years.  He completed year 11 and a qualification as a roof tiler in Australia and worked in that industry, including starting a roofing business which was unsuccessful.  His previous employer who gave evidence would employ him is he remained in Australia.  He was a hard worker.  There is evidence that he participated in the community, including attending church on Sundays with his family.

20. In addition to Ms Calo, his children, brother, “adopted” parents, step brother and step sister, the Applicant listed 20 uncles and aunts, six nieces/nephews and 20 cousins who live in Australia.  He also has friends in Australia.

21. The Applicant financially supports his adopted parents to some extent, as well as Ms Calo, her children and their two children. 

22. The Respondent conceded that this consideration weighs in favour or revocation of the Applicant’s visa.  I find that it weighs moderately in favour of the revocation.

    Conclusion

23. For the above reasons the considerations favouring revocation of the mandatory cancellation of the Applicant’s visa outweigh those considerations against revocation.  There is another reason for revoking the cancellation decision.

    DECISION

24. The reviewable decision made on 30 March 2021 is set aside and in substitution, there is another reason why the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa should be revoked.  

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 21 June 2021

Date(s) of hearing:	31 May 2021 - 1 June 2021
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr J Watts, Australian Government Solicitors