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

[2020] AATA 4587

Lesuma and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4587 (13 November 2020)

Division:GENERAL DIVISION

File Number:2020/5154          

Re:Ilimo Tulevu Lesuma

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:13 November 2020

Place:Brisbane

The decision under review is affirmed

.............................[SGD]...........................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Child (Class AH) (Subclass 101) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – violent offending – mental illness – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Lesuma and Minister for Immigration and Citizenship [2007] AATA 1731.
Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514.
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022, Department of Social Services, 2019.

REASONS FOR DECISION

Member Rebecca Bellamy

13 November 2020

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 40-year-old citizen of Fiji. In August 1999 when he was 19 years old, he moved to Australia. The most recent visa granted to him was a Child (Class AH) (Subclass 101) visa (“visa”).[1]

   [1] Exhibit G1, Section 501 G-Documents, G17, page 127.

2. On 21 June 2019, the Applicant was convicted of a number of offences and was sentenced to various terms of imprisonment to be served concurrently. The head sentence was 12 months imprisonment with a non-parole period of nine months.

3. On 23 October 2019, a delegate of the Minister ("the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 7 November 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 20 August 2020, the Respondent decided not to revoke the cancellation.[4]

   [2] Ibid, G18.

   [3] Ibid, G12.

   [4] Ibid, G4.

4. The Applicant subsequently lodged an application for review in this Tribunal on 25 August 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5] Ibid, G1 page 1.

5. The hearing of this application proceeded on 2 November and 3 November 2020. The Applicant and his pastor, Mr Jay Saininaivalu, gave evidence via video conference. The Applicant has been diagnosed with schizophrenia and did not have legal representation. I gave Mr Saininaivalu permission to assist the Applicant during the hearing. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

6. I note at the outset that the Applicant’s evidence was at times scattered and not responsive to the questions asked of him. I attribute this to his mental illness and to his documented memory problems rather than any attempt to be evasive. The Applicant denied many of the allegations made about his offending and drug taking. There were times when the Applicant, having initially denied something, was brought back to that topic later and made admissions. My impression was that sometimes his memory needed jogging and at other times he came to realise that the evidence was very strong. During the Applicant’s evidence-in-chief and re-examination, Mr Saininaivalu repeatedly tried to put words into his mouth (despite warnings from me) but to the Applicant’s credit, on the whole, he did not allow himself to be led and he gave his own evidence. In my assessment of the Applicant’s evidence, I take into account his mental illness and the impact it appeared to have on his ability to give coherent, responsive evidence. I am grateful to the Respondent’s legal representative for his patience during the hearing.     

   LEGISLATIVE FRAMEWORK

7. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4The 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.

8. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]

   [6] [2018] FCAFC 151.

   [7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

9. There are therefore two issues presently before the Tribunal:

   ·whether the Applicant passes the character test; and

   ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

10. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]

    [8] Ibid.

    Does the Applicant Pass the Character Test?

11. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

12. On 21 June 2019 the Applicant was convicted and sentenced to an effective sentence of 12 months imprisonment with a non-parole period of nine months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[9] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

13. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

14. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

15. Paragraph 7(1) of the Direction provides that:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]

    [10] The Direction, sub-paragraph 7(1)(b).

16. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

17. Part C provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13. (2) of the Direction (contained in Part C) and they are:

    ·Protection of the Australian community from criminal or other serious conduct;

    ·The best interests of minor children in Australia; and

    ·Expectations of the Australian community.

    [11] The Direction, paragraph 13.

    [12] The Direction, paragraph 14.

18. The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

19. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]

    [13] [2018] FCA 594.

    [14] Ibid, [23].

    BACKGROUND AND OFFENDING

20. The Applicant was born in Fiji. He described an upbringing in which he was physically assaulted by his uncle as a means of discipline and in which disputes were resolved by violence and physical intimidation.[15]

    [15] Transcript, pages 101 to 102.

21. He moved to Australia in August 1999 when he was 19 years old. He lived with his father, stepmother and siblings.

22. He has a lengthy criminal history commencing in 2001, involving some 55 offences, some 20 sentencing episodes and numerous custodial sentences. He has committed multiple offences that broadly fall into the following categories:

    ·Assault, including domestic violence and assault police;

    ·Property offences;

    ·Break and enter/robbery/shoplifting;

    ·Resisting/hindering police;

    ·Affray;

    ·Unlawful possession of weapons; and

    ·Possession and supply of prohibited drugs;

23. I will not mention in these reasons all of the Applicant’s offending, instead I will focus on the offences of most concern, which are the assaults and the offences that have resulted in significant terms of imprisonment.  

24. In May 2001, the Applicant and two other men attacked and robbed a man who the Applicant thought had said something offensive to him earlier in the day. The Applicant punched and kicked the victim and a co-offender then joined in. While the victim was on the ground, the co-offender stole his mobile phone and $260 that he had in a “bum bag”. (Following the Applicant’s arrest, he was released on bail and he re-offended while on bail) Two years later, in 28 May 2003, he was convicted of assault occasioning actual bodily harm and robbery in company and sentenced to three years imprisonment with a 12 month non parole period.[16]

    [16] Exhibit G1, Section 501 G-Documents, G10, pages 75.

25. In August 2001, the Applicant assaulted his brother, who was fifteen years old at the time, because had been suspended from school. The police facts[17] state that the Applicant slapped his brother across the face, punched his arm whilst he was trying to cover his face, punched the left side of his skull causing him to fall onto the kitchen table and whilst he was lying on the table, the Applicant punched him again to the head area. After that, the Applicant lifted a kitchen chair into the air and threatened him with it. The Applicant initially seemed to deny punching his brother’s arm, but he broadly agreed with the allegations. He said he did not know why his brother took him to court over it.[18] He expressed perturbation throughout his evidence about his brother reporting the assault and at one point described it as “just a little domestic violence at home”.[19] I accept that the assault occurred as described by the police. The Applicant was convicted and fined $300.

    [17] Exhibit R2, Respondents Tender Bundle,TB3, page 117.

    [18] Transcript, page 55, lines 7 to 40.

    [19] Transcript, page 68, lines 3 to 5.

26. On 17 August 2002 the Applicant committed the following offences:

    ·Affray;

    ·Goods in personal custody suspected being stolen (not m/v);

    ·Possess prohibited drug; and

    ·Custody of knife in public place.

    On 14 March 2003 he was sentenced to 6 months imprisonment and fines totalling $300.

27. On 25 October 2002 as a result of further offending, the Applicant was sentenced to an 18-month good behaviour bond with supervision and he was ordered to participate in and complete drug & alcohol and anger management programmes and a mental health assessment if required.

28. On 16 December 2002, the Applicant committed three common assaults and one shoplifting offence. In September 2003 he was sentenced to nine months imprisonment for these offences.

29. On 9 January 2003, the Applicant assaulted two police offences, and committed some other offences. In April he was sentenced to 12 months imprisonment with a non-parole period of six months.  

30. The police record of the assaults[20] indicates that the Applicant had attended a police station to report for bail. As he had earlier failed to report, he was told he was under arrest. He became aggressive and struck a police officer in the neck. It took several police officers to restrain him. As police were trying to move him into the dock, he rammed an officer into the metal framework of the dock causing red marks and soreness to the officer’s shoulder.

    [20] Exhibit R2, Respondents Tender Bundle,TB4, pages 168 to 169.

31. This incident was put to the Applicant in the hearing and he agreed with the police account. He said he was not affected by drugs but that he was suffering from bipolar. He said he was very sorry for what happened.[21]

    [21] Transcript, page 102, line 30 to page 103, line 24.

32. As stated above, in May 2003, the Applicant was convicted and sentenced in relation to the assault and robbery in company offences committed in May 2001. The remarks of the learned sentencing Judge included the following:

    “These offences were committed upon a person who was outnumbered and in that sense defenceless… The commission of these offences must be seen as having some degree of premeditation to them although that premeditation only occurred on the day in question. In my opinion these offences are such that a prison sentence is warranted in the ordinary course of events.

    …You Lesuma… have a record which includes previous terms of imprisonment for property offences and for offences of violence. In time the commission of this offence predates all others and it must be said therefore that your behaviour has not in general terms improved since the commission of these offences.

    Most recently at Penrith local Court on 16 April 2003 you were sentenced to concurrent terms of imprisonment of 12 months with a non-parole period of six months for offences of assaulting a police officer in the execution of his duty and possession of implements to enter and drive a conveyance. You are due for release on 2 August 2003…

    I have the benefit of a pre-sentence report. You are the eldest of six children, all of whom emigrated from Fiji approximately three years ago coming to live with your father and his de facto wife, who were already in Australia but you had difficulty integrating into Australian life. At the time of these offences you were fending for yourselves, that is you and your siblings with little support and absence of adult supervision.

    The author of the pre-sentence report includes that you found it difficult to adapt to your new life in Australia on a number of fronts including family relationships, developing supportive relationships outside the family and becoming motivated to seek and retain employment and that the offending behaviour is the result of your failure to apply yourself diligently to resolving those issues but instead choosing your time to developing relationships with other unemployed young men, smoking marihuana (sic) and generally spending your time unproductively.

    However, the report which I note is dated 27 August 2002 then concluded that your situation had altered significantly in that you had reduced your contact with other young men involved in offending behaviour instead choosing to associate with the  Fijian Community Church, your family and involving yourself in sport and that there was evidence that you had begun to develop some supportive and positive relationships and at that stage gained employment. However, that again changed apparently you drifted away from those positive relationships and activities. Your bail reporting became unreliable and you had been untruthful and not entirely forthcoming in relation to your employment and social activities during the preparation of the report….

    An updated pre-sentence report dated 24 February 2003 thought there was no further change to your circumstances except that you had been admitted into custody on three occasions. The author of the pre-sentence report noted that you had not attended community or custodial programs to address your alcohol and other drug problems…

    I also have the benefit of a report of [Mr Smith], clinical psychologist dated 28 January 2003….

    Your explanation for your participation in the offences to Mr Smith is that on the day in question you acted as part of a mob to punish [the victim], who you perceive you had antagonised your group of friends. That of course being a wholly unjustifiable basis for what you did. You have acknowledged that in effect you became the predominant antagonist in both striking him and taking property from him. You expressed remorse for your actions and according to Mr Smith insight. Mr Smith indicates that you have strongly reformulated your life. You have an intense desire to maintain your employment and provide for your family. As Mr Smith indicates in his report what the future holds for you is completely dependent on the choices you make. You appear to have decided to change your lifestyle by ceasing your marihuana (sic) dependency, gaining employment, stabilising your financial position and focusing on supporting your fiancée during her then pregnancy.”[22]

    [underlining added]

    [22] Exhibit G1, Section 501 G-documents, G10, pages 63 to 71.

1. At the hearing the Applicant initially denied that he has assaulted the victim, instead blaming the multiple other “guys” that were present. He said he pleaded guilty because feared these people would attack him, and he named one of the people who was sentenced with him. When it was pointed out that the Applicant pleading guilty did not help the other co-offenders if they were also convicted, he said the perpetrator was another Fijian who “took off” and was not charged.[23] When he was asked if he had told Mr Smith that he was the predominant antagonist, or main offender, he said “I think so”. When asked if he told Mr Smith the truth, he said he thought he had.[24] I am satisfied that the Applicant assaulted the victim and that a co-offender robbed the victim during the attack. 

   [23] Transcript, pages 56 to 57.

   [24] Transcript, page 60.

2. In May 2006 the Applicant committed ‘affray’ and was sentenced in February 2007 to nine months imprisonment.  

3. On 30 May 2007, a delegate of the Minister decided to cancel the Applicant’s visa under s 501(2) of the Act.

4. The Applicant sought review of that decision and on 4 September 2007 the Tribunal affirmed the decision.[25]

   [25] See, Lesuma and Minister for Immigration and Citizenship [2007] AATA 1731.

5. Following a successful appeal to the Federal Court, the matter was remitted and re-heard by the Tribunal. The Tribunal set aside the delegate’s decision.[26]

   [26] See, Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514.

6. The Applicant continued offending with reasonable regularity, for example, in 2009, he committed demand property with menaces and was sentenced to eight months imprisonment.

7. In January and February 2011, the Applicant committed the following offences:  

   ·Possess prohibited drug x 2

   ·Resist or hinder police officer in execution of duty

   ·Supply a prohibited drug x 3

   ·Deal with property suspected proceeds of crime

   ·Custody of knife in public place - subsequent offence

   He was sentenced to cumulative terms of imprisonment totalling one year and one month with an 18-month good behaviour bond.[27]

   [27] Exhibit G1, Section 501 G-Documents, G9.

8. In December 2013, the Applicant assaulted his then partner (“Ms K”), who was seven weeks pregnant at that time. They were living together. The unborn baby (“Child A”), is now seven years old and has been in the care of her maternal aunt since birth. The police facts include the following:

   “The victim and the accused have been involved in a domestic relationship for the past six months… The victim disclosed assaults have occurred in the past but these have been unreported to police.

   About 10:45 am…the victim and accused engaged in a verbal argument. The argument was about money as the accused controls all money. The victim receives a pension which goes into the accused’s bank account. The accused also receives a pension which goes into his own bank account. The victim asked for some money to buy food to eat as she was hungry. The accused gave the victim $30.00 to buy food.

   The victim becoming frustrated with the accused, told the accused, “can you please leave? Do not come back.” At this time the victim was sitting on the front steps leading up to the front door.

   The victim states the accused ran at her from the grass at the front of the house and kicked the (sic) her to the right side of her stomach area. The victim felt pain from the kick but does not have any red marks or bruising nor did she require medical treatment.

   The victim stated the accused kicked her in the arm but could not remember where and did not feel any pain associated with it. There were no red marks or bruising to the right arm nor did she require further medical treatment.

   …The accused was arrested and cautioned…The accused agreed things between him and the victim had been strained for the past few days.

   The accused disagreed with the victim on version of events. The accused states he ran at the victim and kicked her to the left upper leg. The accused describes the kick as a “soccer kick” as he was really angry with the victim. The anger stems from the victim telling the accused she will sell his video games and electronic gaming console “Xbox” to get money.”[28]

   [28] Exhibit R2, Respondent’s Tender Bundle, TB8, pages 262 to 263.

9. In March 2014, the Applicant was convicted of common assault (domestic violence) and sentenced to probation for 18 months. In the hearing the Applicant admitted that he had kicked Ms K to the right side of her stomach. He said he did it because she was asking him for money to buy drugs, and she was a “pain in the ass” and “starts fights every day”.[29]  

   [29] Transcript, page 63, lines 22 to 43.

10. Prior to that, in February 2014, he had committed an aggravated break and enter and stealing in company. The Applicant and two co-offenders had broken into a second hand dealer store and stole electronic items (e.g. iPad’s and laptop computers) with a total value of $4,375. The Applicant did not deny having committed this offence.[30]

    [30] Transcript, page 65, lines 10 to 17.

11. In May 2015, he was convicted and sentenced to three years imprisonment with a non-parole period of two years.[31] The learned sentencing Judge’s remarks included the following:

    “Exhibit C is a pre-sentence report in respect of the offender Lesuma… It comments that he presents with a history of protracted chronic substance abuse which is directly correlated to what I described as “mental health issues” and his “history of offending behaviour”. It is commented that his substance abuse commenced at age 17 with alcohol and cannabis, progressing to include amphetamines, heroin and other drugs in his early 20s, and sadly a history of unsuccessful compliance with supervision by Community Corrections. He has also previously been diagnosed with schizophrenia, and indeed it is noted that he has been known to Blacktown Mental Health team since early 2010 when he was admitted to Bungarribee House psychiatric unit at Blacktown Hospital suffering from a drug induced psychosis.

    It is said that when he was returned to custody in 2011 he was admitted to the mental health screening unit within the Metropolitan Remand And Reception Centre and was diagnosed at that time with schizophrenia and prescribed antipsychotic medication…[32]

    The offender Lesuma gave evidence and his presentation was a little confused, as one might expect of a person who has mental health problems. But in his evidence he presented with a very clear recognition that he needed help to get off drugs….he said he was really sorry for what he did, although he alleged he was not on his medication and did not know what he was doing. He said he was really sorry for committing the crime and will not do it again and will not break the law again.[33]

    [31] Exhibit G1, Section 501 G-Documents, G8.

    [32] Ibid, page 40.

    [33] Exhibit G1, Section 501 G-Documents, G8, page 47.

12. On 12 May 2016, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis on the basis that he did not pass the character test and he was serving a full-time custodial sentence. He was subsequently placed in Immigration Detention.[34] On 5 August 2016, after consideration of the Applicant’s representations, a delegate decided to revoke the mandatory cancellation of the visa under s 501CA(4).[35]  The notice that was sent to the Applicant advising of the revocation contained the following warning:[36]

    Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.

    [34] Ibid, G14; Transcript, page 66, lines 1 to 7.

    [35] Ibid, G16.

    [36] Exhibit G1, Section 501 G-Documents, G16 page 124.

13. On the same day on 5 August 2016 the Applicant signed an acknowledgment of receipt of the notice of the revocation decision and which read as follows:

    I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and if this happens, my  past conduct and previous relevant information can also be reconsidered.[37]

    [37] Ibid, G15, page 123.

14. The Applicant said he did not read the letter properly before he signed it.[38] However, he said his brother had been deported in 2014 because of his criminal offending[39] and he was aware at that time that if he re-offended he could be deported.[40] I am satisfied that the Applicant was aware that further offending could result in his deportation.    

    [38] Transcript, page 80, lines 35 to 45.

    [39] Transcript, page 26, lines 35 to 46.

    [40] Transcript, page 82 lines 25 to 27.

15. In January 2018, the Applicant assaulted his then partner (“Ms B”). The Police Fact Sheet include the following information about the assault:

    “The accused and victim have been in an intimate relationship for the past seven weeks, living together… about 11:30 am, the accused and victim were inside their residence…when they began to argue. The victim began to ask relentless questions towards the accused who grew paranoid that there was somebody in the house who was coercing the victim into asking him these questions.

    The accused walked around the house and searched it before returning to the living room where the victim was.

    The victim continued to talk to the accused before he suddenly lashed out with both arms and punched the victim multiple times to the arms and legs. The victim attempted to protect herself from the barrage until the accused stopped.

    The accused stopped and exited the residence, approaching a neighbouring house where he asked the occupants to call an ambulance, stating “I’ve hit my missus, I didn’t mean to, we’ve had a domestic, we need an Ambulance.”

    The accused returned to his house. Police arrived shortly after and spoke to the informant, before approaching [the residence]. On approach, they could hear arguing and yelling coming from inside the house.

    Police spoke to the victim who was clutching her stomach. The victim would not disclose any of what had happened only saying once that she had “copped a flogging” and then asked for an Ambulance as she stated she was three months pregnant and losing her baby. Other than the stated injury, the victim had no other visible injuries Police could see…

    Police applied for a provisional apprehended domestic violence order for the protection of the victim.”[41]

    [41] Exhibit R2, Respondent’s Tender Bundle, TB10, pages 301 to 302.

16. On 26 February 2018, an Apprehended Domestic Violence Order (ADVO) was taken out against the Applicant for Ms B’s protection and a condition of the ADVO was that he not assault Ms B. The ADVO applied until 25 February 2019.[42]

    [42] Ibid, pages 306 to 308.

17. In April 2018, the Applicant was convicted of domestic violence-related common assault and sentenced to an 18-month good behaviour bond. It was also a condition of this bond that the Applicant not assault Ms B.[43]

    [43] Exhibit R2, Respondent’s Tender Bundle, TB10, pages 310 to 311.

18. In the hearing the Applicant suggested that Ms B had not been pregnant at the time of the assault. There is no evidence of Ms B being pregnant three months later when the Applicant assaulted her again or of her later giving birth to a child. I am not satisfied that Ms B was pregnant at the time of the assault. In his evidence, the Applicant admitted to committing the assault.[44]

    [44] Transcript, page 66, lines 25 to 31.

19. In July 2018, the Applicant again assaulted Ms B. The police Fact Sheet includes the following information about the assault:

    “… The Accused and the Victim were in their residence arguing over infidelity issues. The Accused was hugging the Victim, when the victim broke free of the embrace as the argument became more heated. The Accused packed his bags as a result of the arguing and walked out the front attempting to leave.

    The victim followed the Accused, grabbing onto his bag trying to get him to stay. The Accused continued to walk away with the Victim following, and they both crossed the road. The Victim sat down in the gutter…directly across the road.

    The Victim was sitting in the gutter and the Accused was standing face on to the Victim. The Accused was seen to lift his arms and with closed fists swing his arms in the direction of the victim’s head, striking the victim on her head approximately four (4) or five (5) times. The Victim was screaming “Don’t touch me cunt”. The victim yelled the same phrase repeatedly.

    The Accused then attempted to pull the Victim into a standing position by her jumper. The Victim was then in a standing position, and the accused walked back across the road and into their residence…

    The witness observed Accused’s actions from her lounge room window, approximately twenty (20) metres away and contacted 000.

    Police arrived at the scene and spoke to the victim. The victim was not cooperative with police and declined to make a statement against the accused…. The Accused participated in an Electronically Recorded Interview… where he made partial admissions to assaulting the victim, but stated he did not punch the victim at any time. Based on the witnesses details, who is independent to both parties, police believe the accused did in fact struck the victim multiple times. By assaulting the victim, the accused has breached the enforceable ADVO.”[45]

    [45] Exhibit R2, Respondent’s Tender Bundle, TB10, pages 322 to 324.

20. In November 2018, following guilty pleas, the Applicant was convicted of two common assault (domestic violence) offences and contravening the ADVO. He was sentenced to an 18-month Community Correction Order.[46]

    [46] Exhibit G1, Section 501 G-documents, G6, page 27.

21. In the hearing the Applicant denied having assaulted Ms B. He said he had been trying to call a taxi and that “she tried to fight me like a man. She wanted to hit me like a man”, she took his phone and threw it on the ground, started “talking like an animal or something” and she pushed him on the road. He said he raised his hand to her, and she had a seizure and fainted because she was a drug user. While she was on the ground, he had administered CPR, and when she came around she thought he had hit her and she hit him on the chin.[47] He said he had not taken his schizophrenia medication for around two weeks beforehand and that he was intoxicated.[48] Later in his evidence the Applicant said he pushed Ms B and told her to wake up to herself.[49] He denied having any awareness at the time that he was acting in breach of the ADVO.[50]

    [47] Transcript, page 29.

    [48] Transcript, pages 27 to 28.

    [49] Transcript, page 67, lines 26 to 36.

    [50] Transcript, page 67, lines 39 to 46.

22. The Applicant pleaded guilty to the offences. I do not have sentencing remarks or an agreed Statement of Facts before me to establish what findings of fact the sentencing court made.  However, there is nothing on the face of the Police Fact Sheet that calls its reliability into question. According to that document, the account of the assault was provided by an independent witness who saw it take place. I am satisfied that the Applicant assaulted Ms B in the manner described in the Police Fact Sheet.  

23. In April 2019, in contravention of the Community Correction Order that had been imposed in November 2018, the Applicant assaulted Ms B at a train station by punching her in the jaw. CCTV footage showed that the punch caused Ms B’s head to snap back. She was seen with blood on her lip, holding her jaw afterwards.[51] In May 2019, when police saw the Applicant in the company of Ms B and attempted to take him into custody for breaching the ADVO,  he resisted police, violently struggled and struck an officer to the legs, chest and face. He was visibly intoxicated.[52] In June 2019, following pleas of guilty, he was convicted of, and sentenced to periods of imprisonment for, the April and May 2019 offences. He was also re-sentenced to periods of imprisonment for the October 2018 offences because he had breached the Community Correction Order that had been imposed for those. The total effective sentence was 12 months imprisonment with a non-parole period of nine months.[53]

    [51] Exhibit R2, Respondent’s Tender Bundle, TB11, pages 347 to 349.

    [52] Ibid, TB11, pages 360 to 363.

    [53] Exhibit G1, Section 501 G-documents, G7.

24. According to a Sentencing Assessment Report prepared for the purpose of the sentencing proceedings, the Applicant was assessed as posing a medium to high risk of re-offending.[54] This risk assessment was accepted by the learned sentencing Magistrate.[55]  

    [54] Ibid, page 33.

    [55] Exhibit G1, Section 501 G-documents, G7, page 33, line 35.

25. The Applicant told the Tribunal that he did not punch Ms B in the jaw, that she had fallen by herself, and that she had hit him in the jaw.[56] He said he did not know how she came to have blood on her lip.[57] The facts of the offending are contained in the police facts. The Transcript of the sentencing proceedings reveals only that the Applicant was convicted of the offences and that the learned Magistrate accepted that the Applicant had punched Ms B in the jaw. His Honour did not refer to Ms B’s head snapping back or blood on her lip. In accordance with the principles set out in HZCP v Minister for immigration and Border Protection [2019] FCAFC 202, I find that the Applicant punched Ms B in the jaw. While I have some discretion about whether I also find that the punch caused Ms B’s head to snap back or her lip to bleed, I do not consider it necessary to make those determinations.

    [56] Transcript, page 68, lines 41 to 44.

    [57] Transcript, page 69, lines 40 to 46.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

26. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

27. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

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

    The Nature and Seriousness of the Applicant’s Conduct to Date

28. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (f)The cumulative effect of repeated offending;

    (g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

1. The Applicant has committed multiple violent offence in Australia. His victims include female partners, police officers in the performance of their duty, his own brother who was only 15 at the time, and a stranger who he perceived to have antagonised him. Apart from the police officers, his victims were at a physical disadvantage, being female, younger or outnumbered. In accordance with factors (a) to (c) of paragraph 13.1.1(1) of the Direction, these offences must be viewed very seriously. I would add that the attacks on those victims who were at a disadvantage were brutal and/or sustained.

2. His other offending – including breaking into a shop and stealing and supplying a prohibited drug – is the type of offending that causes harm within the community and it is therefore also serious. 

3. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing Court. The Applicant has been given numerous custodial sentences, starting in 2003. The lengthiest custodial sentences were three years for assault and robbery in company, three years for breaking into the second hand store, 12 months for an offending episode involving assaults on police, and 12 months for the most recent assault against Ms B. Each of these sentences indicates the seriousness with which the court regarded the Applicant’s offending.   

4. The Applicant’s offending is certainly frequent and there was a trend of increasing seriousness in his violent offending starting in 2014 with the assault on Ms K. The cumulative effect of his repeated violent offending is that several members of the community have been physically harmed, intimidated and frightened by the Applicant including his domestic partners. Further, it is not unusual for a victim of a violent crime to suffer psychological injury for many years afterwards. The other offences committed by the Applicant have caused financial harm and burdened the criminal justice system. Much of the Applicant’s offending was committed in breach of bail conditions or court orders. His offending history shows a total disregard for the law.     

5. In 2016, the Applicant was formally warned in writing about the consequences of further offending on his migration status. While he now claims he did not read that warning properly, he signed the following acknowledgment:

   “I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and if this happens, my  past conduct and previous relevant information can also be reconsidered.”[58]

   [58] Exhibit G1, Section 501 G-documents, G15, page 123.

6. The Applicant was also aware at that time of his brother’s deportation in 2014. He was on notice that further offending could lead to his visa being cancelled again, yet he went on to commit further offences including some serious assaults.         

7. I do not consider factors (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.

8. The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

9. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

   ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

   Nature of harm should the Applicant engage in further criminal or other serious conduct

10. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

11. The nature of harm should the Applicant engage in further domestic violence offending includes serious physical injury, emotional harm and psychological harm to the victim. The harm is not confined to the victim and often extends to those who care about the victim. In terms of the broader harm to society, the Respondent drew my attention to the Commonwealth Government’s Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022, which reports that every day there are on average 12 women in Australia who are hospitalised due to domestic violence. In addition to the immeasurable physical and psychological harm caused to the victims, violence against women and their children resulted in an overall economic cost of $26 billion in 2015-16, with victims bearing approximately 50 per cent of that cost.[59] 

    [59] See, Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-

    2022, Department of Social Services, 2019. Foreword at Exhibit R2, Respondent’s Tender Bundle, TB15, pages 734 to 735.

12. The harm from violence against other members of society, including police officers, has been referred to above and potentially includes serious physical and psychological injury. 

13. With respect to property offences, the learned Judge who sentenced the Applicant for aggravated breaking and entering and stealing in company said this about such offending:

    “it is absolutely rife in the community and its costs, both direct in terms of costs to the victims of the goods being stolen and indirect in terms of the costs of insurance, and indeed on occasions of mental health problems occasioned by victims, are extensive.”[60]

    [60] Exhibit G1, Section 501 G-documents, G8, page 35.

14. I respectfully agree with His Honour.

15. Should the Applicant engage in further offending of the kind he has previously engaged in, the harm to individuals in the community and the community as a whole includes very serious harm.

    Likelihood of engaging in further criminal or other serious conduct

16. The Applicant suffers from schizophrenia. The evidence is uncertain about when it started.  

17. The Applicant has a long history of drug use which appears to pre-date the onset of his mental illness. While he initially denied that he had used drugs before coming to Australia,[61] he ultimately admitted that he had used cannabis from the age of 14 and that his drug use had led to him being suspended from high school.[62]

    [61] Transcript, page 72, lines 45 to 46.

    [62] Transcript, page 99, lines 4 to 30.

18. The Applicant’s criminal history includes convictions for possession of prohibited drugs in 2003, and possession and supply of prohibited drugs in 2011. There are references in sentencing remarks from 2003 onwards to the Applicant’s problems with abusing alcohol and drugs.

19. There are three psychological/psychiatric reports in the materials before me. In 2007, Dr Gary Banks, consultant clinical psychologist, provided a report in connection with the Applicant’s first visa cancellation with respect to his capacity to represent himself in those proceedings. Dr Banks report indicates that the Applicant reported hearing voices and having paranoid thoughts. He said the Applicant’s clinical profile suggested someone with a history of polysubstance abuse involving illicit drugs and alcohol with many negative impacts on his life. He saw a “very strong” association between the Applicant’s drug use and the onset of his mental health symptoms.[63]

    [63] Exhibit R2, Respondent’s Tender Bundle,TB14.

20. Dr Richard Furst, consultant forensic psychiatrist, provided a report on 14 May 2015 in relation to the aggravated break and enter in company (of the second hand dealer shop). Dr Furst reported the Applicant telling him that he had smoked cannabis from age 15, had a history of consuming alcohol – mostly binge drinking – from the age of 18, he had used heroin sporadically since age 23, and that he had used “ice” sporadically since age 25.[64] In the hearing the Applicant denied that drug use and said he dd not recall being interviewed by Dr Furst.[65] Dr Furst diagnosed the Applicant with schizophrenia and comorbid substance use disorder. In response to a question whether those conditions related to the offending, he said:

    “The offence in question appears to be largely related to his drug use and the desire to obtain more money for drugs. However, it was not clear from his account of events that Mr Lesuma knew exactly what was happening at the time in question. He may well have been vulnerable to exploitation from his co-accused and the unidentified male, especially having regard to his chronic mental illness and current mental state signs.

    His mental illness in the form of schizophrenia also lays the foundation for a dysfunctional lifestyle, with a high rate of comorbidity drinking and drug use in people suffering from schizophrenia. In this sense, his schizophrenic illness was also indirectly related to his drug addiction, poor decision-making and ultimately his offending.”[66]   

    [64] Ibid, TB9, page 280

    [65] Transcript, pages 73 to 74.

    [66] Exhibit R2, Respondent’s Tender Bundle, TB9, page 283.

21. Dr Gerald Chew, consultant psychiatrist, produced a report dated 21 May 2015 in which he confirmed a diagnosis of schizophrenia.[67]

    [67] Ibid, TB9, pages 286 to 291.

22. Based on Dr Furst’s report the sentencing court found that the Applicant’s schizophrenia contributed to his offending.[68]

    [68] Exhibit G1, Section 501 G-documents, G8, pages 47 to 49.

23. It is not apparent on the evidence how consistently the Applicant has taken his schizophrenia medication over the years, however Dr Furst reported that the Applicant denied suffering from the condition. The Applicant conceded that he had not taken his medication for around two weeks preceding the first episode of domestic violence against Ms B in 2018.  

24. The Applicant claimed that he had not used drugs since he had been incarcerated on the most recent occasion.[69] However, the records from the International Health and Medical Services (“IMHS”) indicate that the Applicant had used drugs in prison and has been using cannabis, methylamphetamine and buprenorphine while in Immigration Detention.[70] When these records were put to the Applicant he initially said they were not true.[71] However, there are several file notes made on different dates by different people that are all broadly consistent with each other. The relevant extracts are reproduced in the table:

    [69] Transcript, page 74, lines 25 to 47.

    [70] Exhibit R2, Respondent’s Tender Bundle, TB13, pages 452, 466, 467, 471, 472, 479, 482, 485, 497 and 499.

    [71] Transcript, pages 76 to 78.

Date	Note	Author
30 March 2020	Admitted drug using “twice” since he came in VIDC. Using “pot” and last use was on Thursday 26/03	Mental health nurse
1 April 2020	Last used Buprenorphine six months ago in Parklea jail. Started smoking cannabis when transferred to VIDC, last use was a week ago. Client stated he was smoking every Thursday because that’s when he would get the money. States he has stopped smoking cannabis.	Primary health nurse
29 April 2020	Client has stopped smoking cannabis and has been taking smoking ICE since the last review. Lesuma states that it is because of peer pressure that he is using ICE as he gets offered by other detainees and he doesn’t know how to say no. He has been using ICE once a week on Thursdays when he gets money.	Primary health nurse
12 May 2020	Client admitted to having an addictive personality, stating every Thursday he uses his points to get drugs.	Primary health nurse
9 June 2020	Stated last smoke on Thursday, 2 cones, plans to stop smoking pot eventually.	Primary health nurse
26 June 2020	Reported hx of alcohol consumption, use of marijuana, and ICE. Stopped using marijuana and ICE almost 2 weeks ago, and reported feeling really good.	Counsellor
6 July 2020	Reported last used drug in the compound 2-3 weeks ago.	Primary health nurse
13 July 2020	Reported smoking cannabis, when available, last used three days ago.	Primary health nurse
17 July 2020	Smokes 2-4 cigarettes a day and smokes Cannabis on and off.	GP
31 August 2020	Client states he has been smoking Bup and cannabis twice a week. Client last substance use was two days ago. Author has educated client on the health risk of using substances and client states that he is aware of this. Most of the time he does not want to use substances but it’s because of the people around him who smoke Bup and cannabis. Client states he finds it hard to say no when offered substances by the people around him.	Primary health nurse

1. When asked about these records later in the Applicant’s evidence, he admitted that he had disclosed drug use, but he indicated that he had been under the impression that the disclosures were confidential.[72]

   [72] Transcript, page 104, line 29 to page 105, line 23.

2. In the Applicant’s revocation request, he expressed remorse for his offending, and he also said:

   “…in the future I believe the risk of me offending is when I am being introduce to people who make crimes they’re sorce of income and everyday living. These other people who will make me use drugs, and abuse alcohol and crime organisation.”[73]

   [Errors in original]

   [73] Exhibit G1, Section 501 G-documents, G12, page 102.

3. This is consistent with his reported comments to IHMS staff that he has difficulty saying no to drugs. 

4. I am satisfied that the Applicant used illicit substances while in prison and that he has used illicit substances regularly while in Immigration Detention as recently as August 2020. I am further satisfied that the Applicant has difficulty refusing illicit substances when they are offered and that he prioritised illicit drugs over other things, evidenced by him using the “points” he earns in Immigration Detention to acquire drugs.

5. The Applicant attended a Violent Offenders Therapeutic Program while in prison. He changed his medication some months ago and he reports that it is working well for him.[74] The Applicant has not made any other efforts to manage his mental health condition, his drug use or his propensity for violence. Nor did he demonstrate much remorse for the violence he has perpetrated on others including his brother or his two ex-partners - expressing annoyance that his brother reported him to police and blaming his ex-partners for his behaviour towards them. His attitude gives me no confidence that he now considers violence to be unacceptable.    

   [74] Transcript, page 109, lines 25 to 27.

6. The Applicant’s visa was first cancelled in 2007 and he sought review in this Tribunal.[75] At first instance, the Tribunal received evidence from the Applicant and his father and had the benefit of some psychological reports that are not before me. The Presiding Member summarised the Applicant’s plans for his rehabilitation according to his and his father’s evidence. Those plans were that:

   ·his father would support him in dealing with his everyday mental, personal, physical, social and financial needs and would take him to have mental check-ups;[76]

   ·he would attend his father’s church every Sunday as well as weekdays and take Bible study courses to change him into a “good person living in Christ”.[77] He said he would like to join football teams to keep himself physically fit, work hard and support himself financially, and socialise with people who could help him to abide by the laws of the country;[78]

   ·he was willing to participate in rehabilitation programs provided by the Lakemba Fijian Community Church;[79] and

   ·as he now realised the situation he was in, he had expressed to his father his total willingness to complete the Lakemba Church program and other additional forms of rehabilitation including professional consultations and treatments.[80]

   [75] Lesuma and Minister for Immigration and Citizenship [2007] AATA 1731.

   [76] Ibid, paragraph 19.

   [77] Ibid.

   [78] Ibid paragraph 20.

   [79] Ibid, paragraph 21.

   [80] Ibid, paragraph 36.

7. The decision noted that the Applicant had conceded that he had never undertaken the drug and alcohol rehabilitation courses that had previously been offered to him.[81] Further, there was an expert report that expressed the view that the Applicant’s chronic schizophrenia had been exacerbated by his significant history of drug abuse that he was currently taking the anti-psychotic medication ‘Seroqual’ which had brought substantial improvements in his symptomology such that he did not present an imminent risk of harm to himself or others.[82]

   [81] Ibid, paragraph 25.

   [82] Ibid, paragraph 49.

8. The Presiding Member observed that the Applicant appeared to have considerable difficulty recalling events and that he repeatedly denied or expressed doubts about statements attributed to him in mental health reports.[83] I mention this because the Applicant had the same difficulty and did the same thing, in the hearing before me.

   [83] Ibid, paragraph 23.

9. The Applicant was taken back to 2007 when his visa was returned to him and asked what he thought could happen if he committed further offences. He said he did not know, he only felt like celebrating.[84] He was asked:

   “So did you think you were home free?  Did you think, “Great, I’ve got my visa back and I can just keep committing offences”?

   to which he replied:

   “Yes, I was – yes, I truly I feel great, I feel happy.  I was going to set up a celebration.[85]

   [84] Transcript, page 81, lines 44 to 46. 

   [85] Transcript, page 82, lines 4 to 6.

10. The Applicant said he attended church and bible studies per his plan but only for a month.[86] He said he attended rehabilitation activities through the Lakemba Fijian Community Church around once per month unless he was unwell.[87]

    [86] Transcript, page 89, lines 30 to 39.

    [87] Transcript, page 90, lines 1 to 11.

11. In 2016, after the Applicant’s visa was cancelled for the second time, in his efforts to have the cancellation revoked he said: 

    “I am very regretful for the crimes I have been convicted of and at 36 years of age, being a single father, the time for me to become serious about my life and future is at crucial period. I have spent 2 yrs incarcerated in Maximum Security Prison.  During this time, I believe I became reformed and the future prospect of being in prison longer and deported will detrimental effect on my mental health. I’ve had a long time to think about my future and Australia is the country my daughter will grow up in and I fear being deported will strip me of my right to be a father of my child.  I want to now make the most of the opportunity, Australia [illegible] and work hard for my daughters future. If spared the fate of being deported. I have organised employment with a concrete construction company as a labourer. I’ve been antispating this plan for six months and my spirits were completely crushed when I was hit with the sudden deportation dillima.”[88]

    [Errors in original]

    [88] Exhibit G1, Section 501 G-documents, G14, pages 121 to 122

12. After his release from Immigration Detention, the Applicant was still on parole. A BREACH OF PAROLE report dated 28 November 2016,[89] indicates that the Applicant was in breach of a parole order condition because he had consumed illicit drugs. The report noted that shortly after his release from Immigration Detention on 5 August 2016, the Applicant was admitted to a mental health facility for four weeks. Since returning to the community, the Applicant had attended appointments with the mental health unit and he was participating to a satisfactory level in a Pathways to Employment, Education and Training program. A later BREACH OF PAROLE report dated 22 March 2017,[90] noted that the Applicant had failed to attend mental health and other appointments and failed to attend for his fortnightly injection of medication. Further, he had moved address without permission. A BREACH OF PAROLE report dated 28 March 2017 noted that the Applicant had been using amphetamine.[91] The Applicant attributed these breaches to the influence of people with whom he socialised.[92]

    [89] Exhibit R2, Respondent’s Tender Bundle, TB12, pages 415 to 416.

    [90] Ibid, TB12, pages 417 to 419.

    [91] Exhibit R2, Respondent’s Tender Bundle, TB12, pages 420 to 421.

    [92] Transcript page 83, lines 33 to 38.

1. The Applicant’s current plan for his rehabilitation involved giving up drugs, engaging in employment, avoiding bad influences, and avoiding Ms B.[93] It also relies heavily on Mr Saininaivalu. Mr Saininaivalu is the pastor of a Church and he has been engaged in social work for around 30 years.[94] From 2017 to 2019, after the Applicant reached out to him, he employed the Applicant in his construction company. Mr Saininaivalu has offered to arrange for the Applicant to live with a church family, that could even be his own family, employ him again and provide guidance and support. The Applicant intends to attend Mr Saininaivalu’s church and become involved in church activities. His evidence seemed to be that he would live by himself[95], but he also seemed to consider himself to be very reliant on Mr Saininaivalu’s help so I think it is reasonably likely that he will try living with a church family on Mr Saininaivalu’s advice.

   [93] Transcript, page 91, lines 1 to 6. 

   [94] Transcript, page 118, lines 17 to 35.

   [95] Transcript, pages 116 to 118.

2. Mr Saininaivalu is aware of the Applicant’s mental illness, his drug use and his history of offending. Mr Saininaivalu seemed to be sincere in his desire to help the Applicant and his belief that the Applicant can be helped. I have no reason to doubt that Mr Saininaivalu is an upstanding member of the community and that he could arrange for a church family, possibly his own, to provide a supportive and pro-social environment for the Applicant. My concern is that the Applicant had a very similar plan in 2007 involving the support of his father and a church group that was able to provide various rehabilitative services and he went on to use illicit drugs and he continued to commit offences. Another concern I have is that despite employing the Applicant for three years, Mr Saininaivalu did not know he was using drugs until he was later arrested.[96] This leaves a substantial risk that a relapse could go undetected. Further, during that period from 2017 to 2019 the Applicant was, according to him, attending church regularly[97] however he kept abusing substances and offending.    

   [96] Transcript, page 87, lines 3 to 10; page 119.

   [97] Transcript, page 87, lines 14 to 35.

3. The learned sentencing Magistrate who sentenced the Applicant on the final occasion accepted a medium to high risk assessment. I am not persuaded that the Applicant is in any better position than he was in 2007, 2016 or 2019 to abstain from abusing drugs and alcohol and committing crime. Accordingly, and most unfortunately, it seems inevitable that the Applicant will continue to abuse substances and commit further offences of the kind that he has previously committed.      

   Conclusion: Primary Consideration A

4. Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

5. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.

6. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

   ·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   ·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

   ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

   ·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

   ·     whether there are other persons who already fulfil a parental role in relation to the child; and

   ·     any known views of the child.

7. The Applicant claims to have one minor biological child in Australia, Child A, who is seven years old. He would like to be involved in her life. Child A is the Applicant’s daughter with his ex-partner Ms K.[98]  The Applicant has been incarcerated or in Immigration Detention for around half of Child A’s life. In the Hearing the Applicant stated that Child A is being fostered by her maternal aunt[99] and that he has visited her on three occasions. He said Child A’s foster carers have been reluctant to allow him contact with her.[100] Accordingly, the Applicant has had very limited meaningful contact with Child A and it appears unlikely that he would be permitted to have much contact with her if he were to be returned to the wider community. There is no evidence that the Applicant has ever contributed financially to Child A’s upbringing.

   [98] Exhibit G1, Section 501 G-documents, G12, 117-118.

   [99] Transcript, page 35, lines 25 to 30.

   [100] Transcript, page 35.

8. The potential for the Applicant to play a positive role in Child A’s life is not only limited by her foster parents’ reluctance to allow him any involvement, it is also limited by his ability to abstain from substance abuse, manage his mental illness and refrain from offending.   

9. There is a police report before me that indicates that in 2018, a baby was left in the care of the Applicant and Ms B, they used methamphetamine while the baby was in their care, and that when the police took the baby to the hospital the following morning, she was distressed, malnourished and dehydrated.[101]  When asked about this incident, the Applicant did not deny it but blamed the baby’s parents for leaving the baby with him and Ms B as he did not know how to care for a baby.[102]   

   [101] Exhibit R2, Respondent’s Tender Bundle,TB3, pages 53 to 54.

   [102] Transcript, pages 48 to 49.

10. I have no confidence at all that the Applicant would be a positive factor in Child A’s life or that she would be safe in his care. I cannot find that revocation is in Child A’s best interests.

11. The Applicant claims eight other children under this Primary Consideration, being his nieces and nephews by his two sisters, Ms Y and Ms Z, respectively. They are:

    ·Child B who is 10 or 11 years old and the son of Ms Y but lives with his father;

    ·Child C who is 5 or 6 year old and the daughter of Ms Y and lives with her;

    ·Child D & Child E who are twins aged 16 or 17, the children of Ms Z and Ms Z’s ex-partner;

    ·Child F who is 10 years old and the son of Ms Z and her current partner;

    ·Child G who is 12 years old and the daughter of Ms Z and her current partner; 

    ·Child H who is 7 or 8 years old and the son of Ms Z and her current partner; and

    ·Child I whose age is unknown and appears to also be a child of Ms Z and her current partner.[103]

    [103] Exhibit G1, Section 501 G-documents, G12, pages 97 and 99; transcript, page

12. Child B lives with his father. The rest of the children live with their respective mothers. Children D to I also have a father or stepfather in the family home. Accordingly, all of these children have at least one person fulfilling a parental role.

13. The Applicant stated he has spent some time with Child B and Child C.  He used to talk to them about their interests and has attended a presentation for Child B with respect to sport.[104] He said he had looked after Child C when her parents were not there but gave no details as to what this entailed and how often this occurred.[105] Since his incarceration he has had phone contact with Ms Y but not in the last few months. He has not had any direct contact with the children during this time.

    [104] Transcript, page 13, lines 30 to 35.

    [105] Transcript, page 14 lines 24 to 25.

14. Children D, E, F, G, H and I are the children of the Applicant’s other sister, Ms Z. She is separated from the father of the eldest daughters Child D and Child E who continue to live with her and her current partner with their children, Children F, G, H and I.

15. In the hearing the Applicant said he lived with the family for a time from 2010 to 2011.[106] At this time, Children H had not yet been born and Child G was a baby. The Applicant said he had spent time with Child D and E where they joked with him and he took them to the park and talked about school.[107] He said he had spent time with the younger children and spoken to them about various topics. There is no evidence from any family member about what level of responsibility the Applicant was given over these children, how he behaved around them and why he moved out of that home. He said he has maintained phone contact with his sister during his incarceration and sometimes the children say hello.[108]

    [106] Transcript, page 15, lines 30 to 40.

    [107]  Ibid.

    [108] Transcript, page 16.

16. There is no evidence before me from any of these children or their parents. The Applicant’s evidence was that he has not been able to get in touch with his siblings in the last few months. His evidence suggested that his siblings may now see him as a risk to their children.[109] He seemed equivocal about whether he would have any involvement in their lives if he remained in Australia, saying:

    “I’ll give them a call, and if they say they want to see me, I’ll come and see them, but if they don’t want to see me, I’m fine with that”.[110]

    [109] Transcript, pages 22 and 44.

    [110] Transcript, page 44.

17. There is potential for the Applicant to communicate with the children using electronic means from Fiji if the children want to and their parents allow it.

18. The concerns I expressed in relation to Child A apply equally to Children B to I. That is, I have doubts that their parents would allow the Applicant to have any meaningful contact with them and I have no confidence that the Applicant would be a positive factor in their lives. I cannot find that revocation is in the best interests of these children.

    Conclusion: Primary Consideration B

19. This consideration is neutral.

    PRIMARY CONSIDERATION C:  THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

20. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. 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. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

21. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[111]

    [111] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

22. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

23. Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

24. Those principles, set out in paragraph 6.3 of the Direction, are:

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

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

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

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

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

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.

    Analysis – Allocation of Weight to this Primary Consideration C

25. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia when he was 19 and he is now 40. He has spent approximately half of his life here although much of that time has been spent incarcerated due to his offending;

    ·the Applicant commenced offending only two years after moving to Australia;

    ·the Applicant’s offences include violence against women, police officers, his younger brother (who was a minor at the time) and a stranger who was outnumbered and therefore at a disadvantage. He has committed numerous other offences including property, theft and drug related offences. His offending as whole is frequent and very serious;

    ·there is a very high risk that he will re-offend and that such re-offending will pose a risk of serious harm to individuals and the community;

    ·his visa has been cancelled on character grounds, and subsequently reinstated, on two previous occasions, yet he continued to offend;

    ·he has been employed in construction, as a factory hand and security guard during his time in Australia. He has also been involved in sport and church groups; and

    ·the evidence does not indicate that the Applicant’s removal to Fiji would adversely impact any members of the Australian community.

    Conclusion: Primary Consideration C

26. The Applicant breached the trust of the Australian community, even after having been given a “second chance” on two occasions by having his visa returned to him after it was cancelled on character grounds. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.  

    OTHER CONSIDERATIONS

27. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

    (a) International non-refoulement obligations

28. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. He did mention in his revocation request that there were people in Fiji who were “out to get” him because he owed them money.[112] However, in the hearing he said those people are in Australia and that he had now paid all his debts. He also said there was a cousin in Fiji with whom he clashed but he was not concerned about that because he had his mother there to “step in”. [113] This Other Consideration is not relevant to the determination of this application.

    [112] Exhibit G1, Section 501 G-documents, G12, page 105.

    [113] Transcript, page 51, line 10 to page 52, line 5.

    (b) Strength, nature and duration of ties

29. The Applicant came to Australia at the age of 19 and has lived in Australia for 21 years. As he came as an adult and commenced offending only two years after arriving in Australia, he is entitled to very little weight under paragraph 14.2(1)(a) of the Direction. He has a patchy employment history which affords him some weight under paragraph 14.2(1)(a)(ii) of the Direction.

30. The Applicant’s father is deceased. He has two brothers and two sisters in Australia. He said he had been having difficulty contacting them in the last few months as they did not pick up the phone and did not have time to returns his calls.[114] He said he had asked his family to write letters of support for him, however it appears that none of them did – there are no letters of support in the material before me. There is no evidence that any adult members of the Applicant’s family would be adversely impacted by his removal to Fiji. Nor is there any evidence that his removal would affect the best interests of any minor children, as discussed above.

    [114] Transcript, page 14, lines 30 to 35; page 43, lines 15 to 46.

31. In his revocation request, the Applicant said that his girlfriend (Ms B) would be heartbroken if he was removed from Australia. He said would not cope with an “easy life” being without him.[115] The Applicant gave evidence in the hearing that Ms B contacts him regularly and wishes to resume their relationship. However, he said he now does not wish to resume the relationship. He described her throughout his evidence as being a drug addict, suffering from a mental illness and engaging in behaviours that he found difficult to cope with. Mr Saininaivalu, upon whom the Applicant intends to rely for his rehabilitation if he gets his visa back, made it very clear that he considers Ms B to be a bad influence on the Applicant. Accordingly, whether or not the Applicant’s visa is returned to him, it seems unlikely that he will resume his relationship with Ms B. It follows that the Applicant’s removal to Fiji is unlikely to have any significant impact on Ms B.

    [115] Exhibit G1, Section 501 G-documents, G12, page 104.

1. The Applicant did not disclose any significant social ties except for Mr Saininaivalu although he did refer to wanting to spent time with people who are positive influences. The Applicant has lived in Australia for over 20 years and I accept that he has some social ties to the Australian community. On that basis, I allocate some weight in the Applicant’s favour under paragraph 14.2(1)(b) of the Direction. 

2. Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs in favour of revocation to a limited extent.

   (c) Impact on Australian business interests

3. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.

   (d) Impact on victims

4. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. This Other Consideration (d), is therefore neutral.

   (e) Extent of impediments if removed

5. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account 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:

   ·the non-citizen’s age and health;

   ·whether there are any substantial language or cultural barriers; and

   ·any social, medical and/or economic support available to that non-citizen in that country.

6. The Applicant is a 40 year old man who suffers from schizophrenia and, according to the report of Dr Furst, had some arthritis and dental issues in 2015.[116] I take it from the fact that the Applicant has, as recently as 2019, performed physical labour for Mr Saininaivalu and he intends to resume doing that if his visa is returned, that he does not suffer from debilitating arthritis. There is no other evidence about the Applicant’s dental issues and whether or not they were treated since Dr Furst’s report. While no evidence has been offered about the level of care the Applicant can expect to receive for these medical conditions, I am prepared to accept that it will be lower than the level of care available in Australia, although it is reasonable to conclude that it would be the same level of care available to other citizens of Fiji. The Applicant said he thought he could get his schizophrenia medication in Fiji by seeing a doctor and getting a prescription as he does in Australia.[117]

   [116] Exhibit R2, Respondent’s Tender Bundle, TB9, pages 286-291.

   [117] Transcript, page 12, lines 1 to 6.

7. As the Applicant lived in Fiji until the age of 19, I am satisfied that he will not have any difficulties with the language or culture. His mother lives in Fiji with his brother who was deported on character grounds. They live together in rented accommodation and the Applicant’s siblings in Australia provide them with some financial support. The Applicant’s mother cooks meals and sells them, and his brother has paid employment. The Applicant is confident that his family would support him in Fiji. He is also confident of support from his many other relatives in Fiji.[118] The Applicant is able bodied with some experience in security work and manual labour and, as such, I am satisfied that he has employment prospects.   

   [118]  Transcript, page 99, lines 37 to 43.

8. There is no evidence to suggest that the Applicant will not have access to the same level of social, medical and/or economic support available to other Fijian citizens.

9. If the Applicant is removed to Fiji, he will face the initial challenge of securing employment and sourcing support and treatment for his mental illness. However, these challenges are short term and would not preclude his successful re-settlement in Fiji.

10. This Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.

    Findings: Other Considerations

11. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: not relevant;

    (b)strength nature and duration of ties: weighs in favour of revocation to a limited extent;

    (c)impact on Australian business interests: not relevant;

    (d)impact on victims: neutral; and

    (e)extent of impediments if removed: weighs slightly in favour of revocation.

    CONCLUSION

12. The Applicant’s representative contended on his behalf that the area where the Applicant lived when he came to Australia, Mount Druitt, was a very bad environment for him, being an area with a high crime rate and social problems. I accept that submission. The Applicant then, at some stage, developed schizophrenia (possibly as a result of his substance abuse), which is a very serious mental illness that can be difficult to manage due to the side effects of the medication (among other things).

13. As much sympathy as the Applicant’s circumstances evoke, as the lawyer for the Respondent rightly submitted:

    “every time the Applicant is given a second chance someone suffers. Every time he is let out into the community he commits further offences, which have very serious physical and other consequences for people who are the victims of his offending”. [119]  

    [119] Transcript, page 134, lines 36 to 44.

14. Unfortunately, the Applicant has done very little to mitigate the risk he poses to other members of the community through his offending behaviour.    

15. In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration A weighs heavily in favour of non-revocation;

    ·Primary Consideration B is neutral;

    ·Primary Consideration C weighs heavily in favour of non-revocation; and

    ·To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

16. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

17. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

18. The decision under review is affirmed.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 13 November 2020

Date of hearing:

2 November and 3 November 2020

Applicant:

By video

Solicitor for the Respondent

Mr Karwan Eskerie

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G19 pages 1 to 172)	R	-	8 SEP 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (27 pages)	R	23 OCT 2020	23 OCT 2020
R2	Respondent’s Tender Bundle (TB1 to TB15 pages 1 – 753)	R	-	23 OCT 2020
A1	Applicant’s Submissions (7 pages)	A	-	9 OCT 2020