Lomata and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2835 (9 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4217
Re:Emosi Ucataunisiga Lomata
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Tavoularis
Date of Decision: 9 August 2022
Date of Written Reasons: 31 August 2022
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 16 May 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
..........................[SGD].........................................
Senior Member Theodore Tavoularis
Contents
Decision
REASONS FOR DECISION
INTRODUCTION and BACKGROUND
An important procedural aspect of this matter
Legislative Framework
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
Primary Consideration 1 – protection of the Australian community
The nature and seriousness of the non-citizen’s conduct to date
Summary of the Applicant’s offending
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of the Applicant reoffending
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
(iii) Conclusions about risk
Conclusion: Primary Consideration 1
Primary Consideration 2: family violence
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: the best interests of minor children in Australia
Identification of the relevant minor children
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary Consideration 4: expectations of the Australian community
Conclusion: Primary Consideration 4
Other Considerations
Other Consideration (a): International non-refoulement obligations
Law
The Applicant’s written submissions
The Applicant’s oral evidence
The written evidence of Mr Suliasi Daunitutu
The oral evidence of Mr Suliasi Daunitutu
Findings in relation to non-refoulement
Allocation of weight to Other Consideration (a)
Other Consideration (b): Extent of impediments if removed
The Applicant’s written submissions
The Applicant’s oral evidence
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature, and duration of “other ties” – length of residence
Strength, nature, and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
DECISION
Annexure A ……………………………………………………………………………………… 84
Annexure B ……………………………………………………………………………………… 85
Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of a Class BS Subclass 801 Partner 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. 90 – family / domestic violence – indecent treatment of children – non-refoulement obligations (Fiji) – decision under review affirmed
Legislation
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
AZABF v Minister for Immigration and Border Protection [2015] FCAFC 17
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Tavoularis
31 August 2022
INTRODUCTION and BACKGROUND
Emosi Ucataunisiga Lomata (“the Applicant”) is a 55-year-old male, born in Fiji on 17 August 1967. His movement history indicates that he first came to Australia in 1983 on a school trip. He returned to Australia on 21 September 2008 and departed 19 October 2008. He returned to Australia on 14 January 2009 as the holder of a Tourist (Class TR) (Subclass 676) visa. He has not departed since. He has been in Australia for something in the order of 13 years and eight months.[1]
[1] See Movement Details. R1, G31, page 184.
On 29 October 2020, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s Class BS Subclass 801 Partner visa (“the 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 was serving a full-time custodial sentence.
On 24 November 2020, the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation decision. On 16 May 2022, the Respondent decided that the discretion subsisting in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa was not enlivened. The Applicant was notified of this decision, by email to his authorised representative, on 17 May 2022. On 24 May 2022, the Applicant sought review of the non-revocation decision in this Tribunal.
The hearing of this application proceeded before me on 1 August 2022. The hearing received oral evidence from the Applicant and Mr Suliasi Daunitutu (National President for Fiji Democracy and Freedom Movement (“FDFM”) Australia). The hearing also received written evidence which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.[2]
[2] See generally, Transcript (1 August 2022), page 2, lines 12-41.
An important procedural aspect of this matter
As mentioned, the instant hearing commenced before me on Monday, 1 August 2022. During the hearing, it emerged that the Applicant was not entirely across the nature in which this Tribunal makes and publishes it decisions in matters such as this. He was not fully aware that this decision will be published on without his name redacted, and will be available for viewing by the public more or less forever.
I thought it appropriate to explain to the Applicant why (1) he did not, in the Tribunal’s view, satisfy the necessary statutory requirements for the allocation of the pseudonym and (2) the reality that a person inquiring into the Applicant’s background will, in all likelihood, be able to source and find these written Reasons on an electronic platform. I further explained to the Applicant that the proper and fulsome drafting of these Reasons may very well require me to publish details of the nature of his offending, particularly his commission of offences for which he was sentenced described in his criminal history as, ‘indecent treatment of children under 16, child under 12 years’[3] for which he was sentenced in the Townsville District Court on 10 September 2020.[4]
[3] Criminal Code Act 1899 (Qld), section 210(1)(A); section 3 (“the Queensland Criminal Code”).
[4] R1, G4, pages 38-39.
The Applicant is a musician who receives bookings for performances in public venues. Some of his music has also been recorded and is available online. I offered the Applicant an opportunity to consider his position in circumstances where this decision may well involve the description of something quite adverse to him and which, in turn, may directly impact his potential and capacity to earn a living from publicly performing. The Applicant helpfully understood the tenor of this suggestion and sought an adjournment of the hearing to consider his position. I granted him and adjournment until Friday, 5 August 2022 at which time the hearing was resumed for the making of closing submissions or for the Applicant to advise the Tribunal of his intention to follow a different course with his application.
When this hearing resumed on Friday, 5 August 2022, the Applicant elected to proceed with this hearing and to seek a decision from the Tribunal. The 84th day in this matter occurred only two business days later on 9 August 2022. On that day, the Tribunal affirmed the decision under review by way of a short-form decision such as to meet its statutory obligation pursuant to s 500(6L)(c) of the Act.[5] Attached to these Reasons and marked “Annexure B” is a true and correct copy of this short-form decision.
[5] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
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.
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, para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
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 defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“… (c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; …”
The Applicant’s offending can be summarised thus in tabular form:
Court Date Offence Sentence Townsville Magistrates Court 17 May 2016 Contravention of Domestic Violence Order[8] No conviction recorded
Recognisance: $750
Good behaviour period
9 months
Townsville District Court 22 July 2022 Assaults occasioning bodily harm (2 charges)[9]
Assaults occasioning bodily harm whilst armed/in company - domestic violence offence[10]
On all charges: convictions recorded; sentenced to imprisonment for 2 years, to be suspended for 2 years after serving 5 months Townsville District Court 10 September 2020 Indecent treatment of children under 16; child under 12 years Conviction recorded
Sentenced to imprisonment for 15 months to be suspended for 2 years after serving 30 weeks
Townsville District Court 10 September 2020 Indecent treatment of children under 16; child under 12 years[11] Conviction recorded; sentenced to imprisonment for 6 months
All terms of imprisonment to be served concurrently.
[8] Pursuant Domestic and Family Violence Protection Act (“DFVPA”) (Qld) 2012, section 177(2)(B).
[9] Criminal Code Act 1899 (Qld), section 339(1).
[10] Ibid, section 339(1); section 339(3); and section 564(3A).
[11] Ibid, section 210(1)(A); section 210(3).
As will be noted from the above tabulation, the Applicant was sentenced to a totality of head terms of imprisonment amounting to three years and nine months on 22 July 2022 and 10 September 2022, respectively. A non-citizen’s failure of the character test arises as a matter of law.[12] There can be no question that the Applicant does not pass the character test by virtue of his, “substantial criminal record”,[13] resulting from the imposition of the abovementioned terms of imprisonment upon him which cumulatively amount to a period of twelve months or more.[14]
[12] See R3, page 2, Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
[13] Migration Act 1958 (Cth), section 501(6)(a).
[14] Ibid, section 501(7)(c).
I am therefore satisfied (and I find) that the Applicant has a, “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
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. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[15] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[16]
[15] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[16] Direction No 90, para [6]. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under section 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles 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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[17]
[17] Ibid, para [8].
The Other Considerations which, where relevant I must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[18]
[18] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or 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.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As will be noted from the above tabulation of the Applicant’s offending history, he has committed some six offences that were dealt with at three sentencing episodes on 17 May 2016, 22 July 2020 and 10 September 2020, respectively. His first offence was committed in August 2011 and the remainder of the offences were committed during 2014 and 2015.
While this Applicant’s offending history, both in terms of the number of offences committed and its length, may not be viewed as relatively extraordinary, the nature of the offences for which he has been convicted carry an undeniable level of seriousness because they were offences that involved violence against women, violence against others and offending against a child/children. I will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Summary of the Applicant’s offending
Violent offending
On 22 July 2020, the Applicant was convicted on two counts of ‘assaults occasioning bodily harm” and “assaults occasioning bodily harm whilst in company’. The conviction on the first count arose from an incident that occurred in August 2011 during which the Applicant, his then-partner and his then-partner’s friend, Zoe, became intoxicated after consuming multiple shots of vodka. The sentencing remarks (per Lynham DCJ) recalled the following conduct:
“Count 1 involved an incident in August of 2011. On that occasion, a friend of the complainant’s called Zoe had come around for a drink. You, the complainant and Zoe were drinking vodka shots while sitting on a mat in the bedroom occupied by you and the complainant. As the schedule of facts makes clear, the three of you were all intoxicated. At one point you appeared to have developed some sort of sexual interest in Zoe because you touched her on the leg but she ignored you. At about 3 o’clock that afternoon, the complainant said that she wanted to lay down, so the three of you all went and laid in the common bed.
As the complainant was dozing off, you began touching the top of Zoe’s breasts above the cut of her singlet. Zoe was giggling and telling you to stop. The complainant became alert to what was going on and got off the bed and, in essence, confronted you about what you were doing. You denied touching Zoe and you also got off the bed. The complainant persisted with the confrontation which results in your slapping her twice across the face. When Zoe sough to intervene, you also slapped her across the face and both the complainant and Zoe were knocked on to the bed. The complainant then put her hands over Zoe’s face to prevent you from slapping her again. You then slapped the complainant another couple of times to the face. The complainant’s child heard the commotion and came into the room and was yelling at you to stop. You then slapped and punched the complainant a couple more times.
Ultimately, police were called. They arrived shortly afterwards and you were arrested and taken to the watch-house where you were subsequently released. While the complainant initially made an assault complaint against you, she later withdrew that. There’s a suggestion in the schedule of facts that the reason for that was that you had threatened her with violence if she maintained the complaint. In any event, that is one example as to how dysfunctional and toxic your relationship with the complainant was. As a result of you punching and slapping the complainant, she suffered black eyes and pain in her head.”[19]
[19] R1, G5, pages 41-42.
The conviction on the second count arose from conduct that occurred in January 2014 some two and a half years after the conduct giving rise to the first count. The sentencing remarks (per Lynham DCJ) summarised the offending conduct thus in the sentencing remarks:
“Count 4, being the second assault occasioning bodily harm which I’m sentencing you for, that occurred in January of 2014 and therefore some two and a-half years or so after count 1 was committed. Again, the consistent theme is that you and the complainant were drinking that day. You’d gone around to a mutual friend’s house, called Darren. The three of you were drinking vodka throughout the course of the afternoon and each of you became quite intoxicated. You and the complainant had drunk so much that you decided to stay in a spare room because you weren’t in a position to drive home.
The complainant, at one point, got up during the night and went to sleep in the loungeroom because she was feeling hot. She was woken by you repeatedly punching her in the head. Darren, who had woken in the night and was having a smoke, heard the complainant screaming and saw you beating the complainant. He ran into the house and tried to pull you off the complainant. During that struggle, you stepped on the complainant’s left foot which ultimately resulted in a fracture to her foot. I accept for the purpose of sentence that your fracturing of the complainant’s foot occurred in circumstances where the complainant was endeavouring to separate you and Darren who, at that stage, had been struggling with each other after Darren had sought to intervene on the complainant’s behalf when you were assaulting her.
Eventually Darren pulled you off the complainant and she retreated in to the kitchen. You kept trying to get at the complainant and Darren did his best to hold you back, but you were able to hit the complainant a couple more times while she was in the kitchen. Darren eventually dragged you away from the complainant and out of the house. There was then some punching by you at Darren which ultimately resulted in Darren punching you back and knocking you unconscious.
On this occasion, police were called and when they arrived at Darren’s house, you were still unconscious at that point in time. The complainant refused to make a formal complaint to police or provide any details about what happened and therefore you were not charged at the time. Later that day, the complainant was taken to the Townsville Hospital. Her left foot was X-rayed and found to have a fracture of the fifth metatarsal bone. She lied to the doctor and told them that she’d hurt her foot when she fell down some stairs. However, her foot, of course, was injured when you stepped on it.”[20]
[20] Ibid, pages 42-43.
Also, on 22 July 2020, the Applicant was convicted on a charge proferred as ‘assaults occasioning bodily harm whilst armed/in company – domestic violence offence’. This offending is also summarised by Lynham DCJ in sentencing remarks. Prior to quoting those sentencing remarks, it should be noted that a protection order was made against the Applicant in favour of the complainant on 15 January 2014. This protection order was subject to the usual mandatory conditions. His Honour then proceeded to describe the subject offending in these terms:
“Now, on the 15th of January 2014, a protection order was made against you in favour of the complainant subject to the mandatory conditions only. In January of 2015, count 5 was then committed by you. During a period when you were staying with the complainant, you were drinking vodka and again became heavily intoxicated. You fell asleep in the front yard of the complainant’s house and when you woke up, you asked the complainant what she had done with your vodka. The complainant told you she didn’t know what had happened. You didn’t believe her. You then started searching cupboards in the house and shouting at the complainant for the vodka to be returned.
The complainant told you that if you didn’t stop, she’d call a friend of hers. It was then that you grabbed her by the arms and pushed her against the wall. The complainant called a friend, but was unable to speak to her as you hit her about the head a number of times with a mixture of slaps and punches. You then grabbed the complainant’s phone out of her hand and threw it out the back door. You eventually stopped assaulting the complainant before returning to looking for a bottle of vodka. The plaintiff went outside and her friend arrived a short time later. You came out of the house and the complainant asked you to leave and eventually you did. As a result of that assault on the complainant, she sustained a sore head for about a week and had bruises on her upper arms.”[21]
[21] Ibid, page 43.
With specific reference to this offence, it should be noted that the complainant provided a victim impact statement which was referred to by Lynham DCJ in the sentencing remarks: “…It is clear from the complainant’s victim impact statement that she has suffered emotionally as a consequence of your offending on her and she continues to suffer some effects of her relationship with you up until the present time.”[22]
Offending against a child
[22] Ibid, page 46.
On 20 September 2020, the Applicant received his two abovementioned convictions at the Townsville District Court on two counts of ‘indecent treatment of children under 16, child under 12 years’. The sentencing judge again was His Honour Mr Justice Lynham DCJ who summarised the offending thus:
“The complainant, who was born on the [redacted], had, not long prior to your offending upon her, turned [redacted]. She had been at a sleepover at the residence of [redacted]. During the evening whilst the family were watching a movie in the lounge room you sat beside the complainant. You placed your hand on the top of her breast area which gives rise to count 1 and then manipulated you hand in a way that enabled you to touch the complainant on her vagina, skin on skin, and it is that conduct that gives rise to count 2 on the indictment.
The conduct was brazen in the sense that it occurred in front of other people including the complainant’s brother who made certain observations which became relevant in the course of the trial. The complainant made an almost immediate complaint to her brother when she left the couch were the offender occurred and as a consequence of that she arranged with her brother to sit on another location on the couch to avoid any further contact with you.
There was a delay of approximately two years between when the offending occurred and when the complainant made her first disclosure to her parents which ultimately led to police involvement in investigating the allegations, although I note, as was lead at trial, the complainant, in fact, had made a complaint to a school friend at some stage earlier that did not emerge in a way that enabled the police to become involved. Your offending, therefore, might be described as opportunistic but, as I have observed already, there was an element of brazenness to it in the sense that it occurred whilst others were present in the room. The brazenness is perhaps best explained by other evidence led at your trial that would suggest that at the time of your offending you had been consuming alcohol that day and, in fact, you might have been intoxicated if not heavily intoxicated when you engaged in your opportunistic behaviour.”[23]
[Redactions in original]
[23] Ibid, G6, page 49.
The sentencing judge generously described the Applicant’s conduct as, “brazen”. On any reasonable view, it is utterly appalling and reprehensible. One can have no other opinion of the Applicant’s dreadful conduct when one has regard to the relevant Statement of Facts giving greater context to both the nature of the offending and the circumstances in which it was committed:
“ Statement of Facts
R v Emosi Ucataunisiga LOMATA
Count Date Section Offence Maximum penalty 1 & 2 On or about 19 September 2015 210(1)(a), (3) Criminal Code Indecent treatment of a child, under 16, under 12 20 years imprisonment Background
[1] The complainant in this matter is [name of victim redacted], she was 10 years old at the time of the offending.
[2] [Name redacted] was the de facto partner of the defendant. In late 2014 she started a before and after school childcare business. She advertised her service on Facebook and met the complainant's mother, [name redacted].
[3] [De facto partner’s name redacted] and [name of victim’s mother redacted] entered into an agreement which involved [de facto partner’s name redacted] dropping [victim’s mother’s name redacted] four children to school in the morning and collecting them in the afternoon. This arrangement commenced at the start of the school year in 2015.
[4] During the year, the defendant would occasionally come with [de facto partner’s name redacted] for the school run.
[5] In addition to dropping the kids to and from school, on a couple of occasions through the year [de facto partner’s name redacted] would take the kids on outings such as to the movies or ten-pin bowling.
[6] On Friday, 18 September 2015, [de facto partner’s name redacted] collected the complainant and her two brothers and they stayed over at her house on Friday and Saturday night.
[7] The defendant committed the offences on Saturday night, he was 48 years old at the time.
Offending
[8] During the night of 19 September 2015, the complainant, her two brothers, [de facto partner’s name redacted] and the defendant started watching a movie.
[9] The complainant sat on the couch covered with a blanket and the defendant sat next to her.
[1]. The defendant put his arm around her shoulders and whispered things in her ear. He lowered his hand over her shoulder so that it was laying against her breast, on the outside of her clothing. He also squeezed her breast a little (Count 1).
[11] The defendant then moved his hand to the outside of the complainant's thigh. He rubbed her thigh for a time before moving his hand up her leg, under her pants where he touched her on the vagina skin on skin. He moved his finger around on top of her vagina for a time (Count 2).
[12] The complainant got off the couch and asked her brother [victim’s brother’s name redacted] to come with her to the toilet. Whilst in the toilet she disclosed the offending and when they returned to the lounge-room they swapped places so that the complainant was sitting away from the defendant.
[13] Throughout the course of the offending the complainant wanted to say something but she was scared.
Detection and arrest
[14] Around July 2017, the complainant disclosed the offending to her mother [name of victim’s mother redacted] and a short time later she told her father.
[15] On 3 August 2017, her father reported the matter to police and on 26 October 2017, the complaint provided a formal statement to police.
[16] At about 6:40am on 13 March 2018, police attended the defendant's house, arrested him and took him to the Ayr police station.
[17] The defendant participated in an interview where he told police that he recalled the occasion when the three children stayed over for a couple of nights but denied committing the offences.
[18] He was subsequently charged and released on bail.”[24]
[24] R2, R2, pages 10-11.
The sentencing remarks also contain reference to the victim having been diagnosed with post-traumatic stress disorder. The sentencing hearing received evidence from a clinical nurse which confirmed this diagnosis:
“The parents of the complainant have provided a victim impact statement and I am also assisted by a letter under the hand of Judy Olson, clinical nurse consultant which bear out the effects and consequences of your offending on the complainant. What is clear from her parents’ victim impact statement is that your offending upon her has had serious consequences. They observe that she has been undergoing therapy for the past four years. She has been diagnosed with post-traumatic stress disorder as a consequence of what you did to her and as a consequence of that, they have commenced what is described as trauma therapy with a youth mental health provider in Townsville. It has had other consequences for her in terms of her general confidence and in the words of the complainant’s parents your offending upon the complainant has taken from her – her childhood.
The letter provided by Ms Olson, the clinical nurse, also confirms that the complainant has been diagnosed with post-traumatic stress disorder which she relates to the sexual assault that was committed on the complainant some five years ago and she also confirms that the offending has had a significant impact upon the complainant…”[25]
Domestic violence offending
[25] R1, G6, page 50, lines 16-32.
The first entry in the Applicant’s criminal history relates to the contravention of a domestic violence order that had previously been made against him. The relevant order had been issued on 15 January 2014 and compelled the Applicant, in the usual terms of such orders, to be of good behaviour towards, and not commit domestic violence against, the aggrieved. He contravened this order or 16 December 2015. The relevant file note records that the aggrieved contacted police to report the Applicant’s refusal to leave her residence. After initially refusing the aggrieved’s request to leave the residence, the police intervened and subsequently removed him, took him to the front of the residence and then arrested him for contravention of the subject order. He was then taken to the Townsville watchhouse and duly charged.[26]
Traffic history
[26] R1, G7, pages 54-55.
The material contains a traffic history referrable to the Applicant. In terms of the number of offences, the traffic history is relatively unremarkable. Where the history is notable is in relation to the Applicant’s commission of a drink-driving offence, at a ‘over mid but not over high-alcohol limit’ on 13 September 2014. He was breath-tested and produced a blood alcohol content result of 0.122. This reading is in the order of two and a half times over the legal blood alcohol limit of 0.05. He was fined $700 and disqualified from driving for seven months.
Paragraph 8.1.1(1)(a)(i)
This paragraph deals with the commission of violent and/or sexual crimes. If an Applicant has a conviction(s) for such offences, this paragraph mandates that those offences are to be viewed “very seriously” by the Australian government and the Australian community. There is nothing to cavil with the proposition (and finding) that the Applicant’s dual convictions in the realm of ‘assault occasioning bodily harm’ fall squarely within the auspices of this paragraph 8.1.1(1)(a)(i). I am accordingly of the view that the Applicant’s violent offending compels a finding that the nature of the Applicant’s conduct has been very serious.
Paragraph 8.1.1(1)(a)(ii)
This paragraph refers to crimes of a violent nature against women or children. If a non-citizen has committed such offences, the Direction deems that such offending must be viewed “very seriously” by the Australian government and the Australian community. Once again, the dual convictions for violent offending against a female victim, for which the Applicant was sentenced on 22 December 2020, must surely fall within the ambit of this sub-paragraph. There is nothing to preclude the application of this specific sub-paragraph of the Direction to this offending notwithstanding that I utilise that offending to engage the operative effect of the immediately preceding paragraph.
There can be only one finding: this Applicant’s crimes of a violent nature against women undoubtedly militate in favour of a finding that the totality of his unlawful conduct in Australia has been of a very serious nature.
Paragraph 8.1.1(1)(a)(iii)
This particular paragraph looks for acts of family violence in a non-citizen’s offending history. If such conduct is apparent, then regardless of whether or not there is a conviction for such conduct, it must be viewed “very seriously”. Here, the Applicant was the subject of a domestic violence order made on 15 January 2014. He knowingly breached it on 16 December 2015 by appearing at the residence of the aggrieved and refusing her request to leave her residence. As noted above, he only departed after police were called.
I am of the view that this conduct constitutes an act of family violence which did attract a conviction as a result of the Applicant’s breach of its terms. This paragraph therefore militates very strongly in favour of a finding that the totality of the Applicant’s offending in Australia has indeed been of a very serious nature.
Paragraph 8.1.1(1)(b)(i)
There is nothing in the oral or written material suggestive of the Applicant’s commission of any offences in the realm of causing a person to enter into or being a party to a forced marriage. He has no formally recorded conviction for such offending. There is no reference to any such offending in any police narrative (or equivalent) leading to any conviction. This particular paragraph is therefore not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
This paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. There is no reference in the Applicant’s criminal history to the commission of any such offence(s). This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to serious conduct involving “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. The Respondent has not propounded this component of the Direction in either its written or oral submissions. The transcript of proceedings contains no reference to this particular paragraph. I therefore find that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this paragraph. It was not propounded by the Respondent in either its written or oral submissions. This paragraph is thus not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(c)
In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women or children;[27] (2) acts of family violence;[28] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[29]
[27] Direction No 90, para [8.1.1(1)(a)(ii)].
[28] Ibid, para [8.1.1(1)(a)(iii)].
[29] Ibid, para [8.1.1(1)(b)(i)].
I feel compelled to approach the application of this paragraph with some caution. Applied to the instant facts, its terms preclude me from taking into account:
·the Applicant’s conviction imposed on 17 May 2016 for breach of domestic violence order;
·the Applicant’s respective convictions on 22 July 2020 for assault-type offending because this violent offending was committed against women;
·at first blush, the Applicant’s respective convictions imposed on 10 September 2020 relating to indecent treatment of a child under twelve years of age.
I have said, “at first blush” in the final bullet point of the immediately preceding paragraph because I am precluded from taking into account any sentence arising from violent conduct against “women or children”. However, I am not precluded from taking into account sentences imposed on the Applicant in the realm of the more generically termed “violent and/or sexual crimes” appearing at paragraph 8.1.1(1)(a)(i). There is no question his assault-type offending for which he was convicted on 22 July 2020 were crimes of violence. There is no question that his indecent treatment of a child convictions on 10 September 2020 were undoubtedly sexual crimes.
The imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[30] The sentences imposed on the Applicant for his violent and sexual offending are significant because they amount to head custodial time of three years and eight months. It is therefore safe to find that the sentences imposed on the Applicant for his violent and sexual offending are strongly militative of a finding that his unlawful conduct in Australia has been of a very serious nature.
[30] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22].
Paragraph 8.1.1(1)(d)
This paragraph concerns itself with two specific aspects of a person’s offending history: its frequency and/or whether there is any trend of increasing seriousness in the pattern of its commission. First, while the Respondent may contend in its Statement of Facts, Issues and Contentions (“SFIC”) that the Applicant’s offending was not frequent,[31] I respectfully disagree. I think the Applicant’s offending was frequent during the two specific years where all but one of his offences was committed. The Applicant has committed six offences, four of which were committed in a two-year period comprising 2014-2015. The commission of four offences across an approximate twenty-month period amounts to approximately one offence every five months. This is undoubtedly frequent offending during this offending period.
[31] See R3, page 9, para [38].
Second, is there a trend of increasing seriousness to the Applicant’s offending pattern? I think there is. The offending history commences with a relatively unremarkable breach of a domestic violence order resulting in the conviction for that breach (in May 2016). This conviction was punished by the Applicant entering into a good behaviour recognisance. There followed three respective convictions for the assault occasioning bodily harm-type offending (in July 2020). This offending was punished by a head custodial term of two years. There followed the Applicant’s commission of the truly appalling ‘indecent treatment of a child’ – type offences on 10 September 2020. This offending attracted head custodial terms of 21 months imprisonment. I am satisfied that the nature of the Applicant’s offending against a child under the age of twelve years can be safely found to be more serious than his very serious conduct in the realm of ‘assaults occasioning bodily harm’.
I am therefore satisfied that this Applicant’s offending – for the 2014-2015 period of its commission – has been of a frequent nature. I am further satisfied that upon review of the nature of the offences and the sentences imposed during the evolution of the criminal history, there is a demonstrative trend of increasing seriousness in his offending. I therefore conclude that both elements of this particular sub-paragraph 8.1.1(1)(d) are strongly militative of a finding that the totality of the Applicant’s offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(e)
This paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. I am of the view that the Applicant’s sequence of offences is demonstrative of a number of cumulative effects. First, the Applicant’s violent offending against female victims has not only caused them physical injury but other psychological trauma as well. One does not need to re-quote the relevant sentencing remarks to be reminded of the reality that the learned sentencing judge took these consequences suffered by the victims into account when sentencing the Applicant.
Second, the Applicant’s breach of a domestic violence order was demonstrative of a person who has not developed any measure of respect for the lawful authority represented by such an order. He refused to comply with its terms by showing up unannounced at the residence of the aggrieved person. He refused her reasonable requests to leave, and he only agreed to leave the premises after the police intervened. This failure to respect or appreciate lawful authority is also evident from the Applicant’s traffic history. In 2014, he was apprehended, and breath tested at the wheel of a motor vehicle and was found to be driving with a blood alcohol concentration almost two and a half times over the legal limit. I have previously recorded my thoughts about the danger presented to the community by irresponsible conduct at the wheel of a motor vehicle which goes to, “…the essential safety of the community”.[32] I see no reason to change those views in the context of this Applicant’s traffic offending.
[32] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at para [45], citing Apire and Minister for Immigration and Border Protection [2014] AATA 193 at para [16].
Third, and perhaps most significantly, the Applicant’s appalling offending against a child under the age of twelve years has, without question, traumatised that victim child, most probably for the rest of her life. There is absolutely no excuse or justification for offending by an adult against a child because such offending derives from a position of a life-experienced perpetrator taking advantage of the innocent and well-intended naivety of a child. If the Applicant forever carries one burden from his offending it should be the unjustifiable deal of pain, suffering and sorrow his offending had induced, and probably will forever induce, in its victim.
The above-described cumulative effects of the Applicant’s repeated offending must militate in favour of a finding that the totality of his offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether a non-citizen has provided false or misleading information to the Respondent Minister’s Department, including by not disclosing criminal offending. The material contains no evidence of the Applicant being involved in the commission of such conduct. There is no reference to, for example, an incorrectly completed incoming passenger card. Indeed, it is impossible for such a passenger card to have been incorrectly completed by this Applicant.
As will be recalled, the Applicant initially arrived in Australia in September 2008 and stayed here for a month. He then returned to Australia in January 2009 and has not departed Australia since that time. His first conviction was in May 2016. Therefore, the Applicant had, as it were, nothing to report about any criminal conviction(s) upon his re-entry into Australia in January 2009. This paragraph is therefore not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. Within the totality of the evidence, I could not find any reference to the Applicant, “being formally warned or since otherwise being made aware, in writing about the consequences of further offending in terms of…” his visa status to remain here.
While there is reference in the material to a past determination by the Refugee Review Tribunal (on 14 March 2011) refusing this Applicant a “Protection (Class XA) visa”, it would be incorrect to conflate the making of this decision with the operative effect of this specific paragraph 8.1.1(1)(g) on the specific issue of the Applicant’s current application to restore his visa status to remain here. In short, I am not of the view that the abovementioned decision made in March 2011 constitutes a formal or other warning to the Applicant about the consequences of further offending on his Australian visa status. Indeed, the Applicant had not even commenced compiling a criminal history in March 2011.
This paragraph is therefore not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which I have referred, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(2)(a) compels an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I have no hesitation in finding that in the event of the Applicant’s re-commission of any of the offences apparent in his criminal history thus far, his individual victims and/or the Australian community at large could quite conceivably suffer physical and psychological harm including, quite conceivably, to a catastrophic level.
Were he again to breach the terms of a domestic violence order made against him, it would cause the aggrieved person to become fearful about their safety such that police intervention would most likely be necessary. Were he to again violently offend against women, those victims could quite conceivably experience the same ill-effects of the Applicant’s unlawful conduct as the victims of his past offending have done. Were he to again indecently deal with a child, one need look no further than the abovementioned sentencing remarks and Statement of Facts to understand the very serious harm that such child victims would experience. Were he again to assume control of a motor vehicle under the adverse influence of alcohol, serious harm could ensue to other road-users.
I am satisfied (and I find) that were this Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious and would involve physical and psychological harm to its victims including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of the Applicant reoffending
In his Personal Circumstances Form (“PCF”), the Applicant seems to attribute virtually all his offending to either or both his abuse of alcohol and/or finding himself in situations where he says he needed to act in self-defence. In response to the question “Outline any factors you believe help explain your offending, that you want the decision-maker to take into account”, the Applicant responded thus:
“Your Honour, the main factor of my defending to be taken into account was:
Alcohol: you see, I hardly drink alcohol back in Fiji because of my contract at the Naviti Resort has a musician but when my ex-partner brought me to Australia, she was buying 2 750mls bottles of vodka everyday, introduced me to hard spirits, drinking straight shots which triggers her to snap and become violent. Most times I run away from her but when I defend myself, I get in trouble.”[33]
[33] R1, G10, page 78.
Further in his PCF, the Applicant was asked to “Provide information on what you believe to be the risk of you offending in the future, and your supportive reasons”. The Applicant responded thus:
“Your Honour,
The risk of me offending in the future is my ex-partner whom I left three years ago. She was the instigator of every violence because she had the money and the power to control. I couldn’t do anything as I was helpless and had nothing. I have not offended ever since I left her.
I was invited and honoured to play and sing Christmas carols at a dinner in the park function on Palm Island by Pastor [name redacted] and the church there which had an effect on me to refocus on my life, keep out of trouble, change and become a better.
The future would have been great as I was going to start a music project with [the above-referred to Pastor whose name was redacted] for the community of Palm Island last February but we have had to put it on hold because of my court cases.”[34]
[Tribunal redaction]
[34] Ibid.
In his SFIC, the Applicant largely repeats and relies on the theme that the person primarily responsible for the offending history he has compiled in this country is his former de facto spouse who apparently introduced him to alcohol in Australia. Apparently, under her influence, he developed an abusive relationship with alcohol which, in turn, so severely skewed his moral compass such as to cause him to commit the offences appearing in his criminal history. In his SFIC, he projects himself as the victim in an abusive relationship who was also apparently caught up in the maelstrom of her former relationship with her ex-husband. After self-describing the circumstances of that relationship maelstrom, the Applicant’s principal contention about his recidivist risk seems to crystalise into this:
“All those historical charges clearly shows that 'alcohol' was and is the main culprit and the biggest factor to violence from both sides, heavily intoxicated because without the alcohol, we were just another loving, easy going and normal couple like in any other normal relationships.”[35]
[35] A1, page 2.
Under the heading “Key facts” in his SFIC, the Applicant makes reference to specific convictions an either disagrees with a given conviction and its factual basis or otherwise seeks to lay the blame for any or most of his convictions at the feet of his criminal defence lawyers. There is, for example, reference to a given offence and the Applicant then responds with comments such as:
·“I disagree with this as I wasn’t aware of this charge of being armed.”
·“I disagree with this as I never ever threatened her about further violence if she maintained the complaint.”
·“I disagree with this as I told her that morning on our way to work that we should cut down on our drinking because we were drowning our sorrows in alcohol which was causing all the arguments and fights.”
·“After going through my ex-partner's messages and her motives, schemes and plans as already stated in my statement, I begin to question and wonder about everything that happened. I don't really know what's true anymore and the fact that the victim kept changing her story and her statements and the brothers story doesn't add up which makes me wonder about it and the way my lawyers handled it, we didn't have time to talk about this as she was always busy. I felt like I was prejudged and my lawyer kept making excuses not getting the video from the prosecutions office until it was shown to me in court.
·“I disagree with this as I have given my ex-partner’s messages as my evidence and told my lawyer about the Police report of the knifing incident of which she said she will get but it boggles my mind that it was not provided.”[36]
[36] Ibid, pages 3-4.
During cross-examination, it was put to the Applicant that much of his evidence in response to questions about the circumstances of his offending conduct related to him either disagreeing with it or blaming others for it (such as his former spouse and/or his criminal defence lawyers). He suggested at the hearing that despite his consistent denial of and resistance towards, accepting responsibility for the extent of his offending, he was nevertheless, “…remorseful for everything that happened.”[37] The Applicant’s position is simply not plausible.
[37] Transcript (1 August 2022), page 8, line 22.
It is not plausible because (1) the former spouse did not give any evidence to corroborate what the Applicant had to say about her role in apparently introducing him to alcohol and to cause him to develop an abusive relationship with alcohol and (2) none of the Applicant’s lawyers were called to give evidence about the Applicant’s suggestions of some type of failure on their part in their representation of him. As I explained to the Applicant during the hearing,[38] I am not interested in any submission about the sufficiency or otherwise of an Applicant’s legal representation at past trials and/or sentencing hearings when details of those offences are ventilated before me.
[38] See generally, Ibid, page 13, lines 1-25.
This is because those legal practitioners have not been afforded the fairness of an opportunity to give evidence about the Applicant’s current accusations against them. The Applicant had an opportunity to call those legal practitioners to give oral evidence. He did not do so. He has rights to complain to regulatory authorities overseeing the legal profession. He has never done so. To repeat, the Applicant’s evidence about his past relationship with his former spouse and about the nature and quality of his past legal representation say little or nothing about how those factors were, in the past, predispositive towards either his commission of the offences or the very serious criminal history he has compiled in this country.
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
In his SFIC, the Applicant makes reference to his breach of a domestic violence order on 16 December 2015 and makes a vague reference to his attendance at, “a course in domestic violence” but says nothing about whatever benefit he may have derived from that course in terms of his recidivist risk. Instead, he again adopts the position of the victim and takes on a sanctimonious tone about his understanding of societal attitudes towards this type of conduct:
“I disagree with this because I did have counseling (sic) and attended a course in Domestic Violence which was ordered by the court which would've been great for us couples with violence on both sides to attend together which will really help a relationship but it seems like I see the triggers and walk away but she couldn't as most men also get abused which goes unreported because society don't accept it.”[39]
[39] A1, page 4.
In the decision under review, the learned delegate noted that:
“… I consider that uncertainty prevails as to whether he will again commit domestic violence offences if he were to embark upon another relationship or have other major changes to his present life, noting that he has not provided any evidence of counselling or completion of formal courses relating to domestic violence.”[40]
[40] R1, G3, page 28, para [54].
In his letter to this Tribunal, dated 23 May 2022, the Applicant sought to address this absence of any rehabilitative effort on his behalf by making the following suggestion:
“It was mentioned in the decision letter that I have not attended any courses of rehabilitation. I would have attended courses in custody however these have not been available to me at either prison or this detention centre. I will do anything required to remain in Australia such as doing courses and counselling (sic).”[41]
[41] Ibid, page 4.
While there may be a modicum of evidence about the extent to which the Applicant may have undertaken any sort of rehabilitative course or treatment, I am of the view that it has not benefitted him to any discernible extent when one has regard to the defiant and non-accepting nature of what he has to say about the offences for which he has been convicted.
(iii) Conclusions about risk
The Respondent has helpfully identified a number of themes, each of which validly speak to the Applicant’s recidivist risk:
·There is nothing before the Tribunal from any independent clinician who has examined and assessed the Applicant such as to ascertain precisely which predispositive factors have been behind his offending. Similarly, there is no prognostic analysis from such a clinician giving any detail of how those identified predispositive factors can now be said to be under some sort of remedial treatment, management and control such as to give rise to a definitive assessment of the Applicant’s current and future recidivist risk;
·The Applicant’s repeated commission of violent conduct in a domestic context is particularly concerning and otherwise unresolved. His initial transgressions in the realm of domestic violence saw (1) the making of a protection order against him and (2) his breach of that order by largely petulant, but not necessarily violent, behaviour. The concerning aspect of his domestic violence offending is to be found in his following convictions for ‘assaults occasioning bodily harm’ (two charges) and ‘assaults occasioning bodily harm whilst armed/in company – domestic violence offence’. This conduct was significantly more serious that his breach of the abovementioned domestic violence order. It was brutal conduct perpetrated on female victims. It was also conduct that he perpetuated in the presence of a child and after being asked to stop it;
·The Applicant’s engagement with some type of rehabilitative process is sparse and unconvincing. The point to be taken from the state of the Applicant’s rehabilitation is that, in addition to the absence of any evidence of involvement by an independent clinician, there is little to suggest the Applicant will be disposed to engaging with rehabilitation if returned to the community. The tone of his evidence bears this out. He either completely refutes a given conviction or blames others for it, such as his former spouse and/or his past legal representatives. If the Applicant does not accept the nature and extent of his offending for which he has been convicted and punished, it is difficult to believe that he will feel inclined to seek rehabilitative treatment in the community. I anticipate his view will be, “why should I get any rehabilitation if I have done little or nothing wrong or if what I have done wrong is the fault of others?”;
·It is abundantly plain from the sentencing remarks that those dealing with the circumstances of the Applicant’s offending have quickly homed in on his abusive relationship with alcohol as a consistently present ingredient on virtually every occasion of his offending. It is both unsafe and too simplistic for this Tribunal to accept and find that the mere absence of the Applicant’s former de facto partner, who apparently introduced him to alcohol, is a sufficiently strong factor militating against his future recidivist risk. She may have been removed from his life, but that is not to say alcohol, and the Applicant’s predisposition to abuse it, has been removed from his life. In circumstances where alcohol will be freely available to the Applicant in the general community (were he to be returned to the Australian community), it is a starkly deficient feature of this case that he does not appear to have completed any courses or to have undergone any meaningful counselling to address his undeniable past difficulties with alcohol abuse;
·For reasons I have stated, the Applicant’s purported sentiments of regret and remorse are simply not plausible. The Respondent, it is SFIC, describes those sentiments as, “…superficial at best in circumstances where he maintains that he was the victim in his relationship and that it was his ex-partner who instigated every violent incident”.[42] I agree. Perhaps even more seriously, he purports to maintain his innocence in relation to his convictions for the appalling offending against a victim child. Once again, he seeks to allocate blame, or at least some contributory conduct behind his offending, at the feet of others by suggesting that his former partner somehow colluded with the child-victim’s mother to secure convictions against him. Perhaps even more astonishingly, the Applicant, in his SFIC, purports to challenge the victim’s evidence by suggesting she, “…kept changing her story…” and that the victim’s version of events and that of her brother, “…doesn’t add up which makes me wonder about it and the way my lawyers handled it…”.[43] The contention by the Respondent is that this maintained posture of defiance against the factual circumstances of his offending demonstrates a concerning lack of insight this Applicant has in relation to his offending. I agree; and
·There is an absence of any familial support or other close-person support around this Applicant in Australia such as to militate against his future recidivist risk. His SFIC refers to a female who, he says, has apparently, “…offered me her genuine support with a roof over my head and employment prospects.”[44] This female did not give any corroborative evidence at the hearing. His evidence about her apparently assisting him with, “employment prospects” is at odds with his own evidence at the hearing that he has in the past, and in the future most probably will, make his own booking arrangements for musical engagements. Little to no weight or credence can be allocated to this female and whatever role she can play in lessening the Applicant’s recidivist risk.
[42] R3, p 12, para [45.5].
[43] A1, page 4.
[44] Ibid.
Having regard to the state of the evidence, I am of the view that this Applicant’s level of recidivist risk cannot be known, understood, or ascertained with any greater certainty now than was the case at the time of his most recent removal from the Australian community on 10 September 2020. Accordingly, there is no safe basis for concluding that he now represents any different recidivist risk than that which he represented in September 2020.
In my view, there remains an unacceptable risk that if this Applicant were returned to the community he will most likely resume an abusive relationship with alcohol and once again, very seriously offend. I am of the further view that the risk he now represents is a level such as to be unacceptable to the Australian community.
Paragraph 8.1.2(2)(c): out of an abundance of caution and for the sake of completeness, I make reference to paragraph 8.1.2(2)(c) of the Direction. This matter does not involve a “refusal to grant a visa to a non-citizen”. It involves an application for the, “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, “very serious”;
(b)I have found that were this Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious and would involve physical and psychological harm to its victims including, quite conceivably, harm to a catastrophic level.
I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as being no different now than it was following his most recent sentencing hearing in September 2020. I am of the further view that the harm that would be caused by this Applicant repeating some or all his past offences is so serious that such a risk must be found to be unacceptable to the Australian community.
My analysis of the material before me leads me to the finding that this Primary Consideration 1 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.
primary consideration 2: family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Prior to an application of this paragraph 8.2 to the material, it necessary to note that it contains two questions which I must determine: (1) who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against those family members amounts to family violence? I will now address each question in turn.
Who are members of the Applicant’s family?
Reference should again be made to the circumstances surrounding the Applicant’s conduct which led to respective convictions for ‘assaults occasioning bodily harm (2 charges)’ and ‘assaults occasioning bodily harm whilst armed/in company – domestic violence offence’. I have earlier outlined the factual circumstances of the Applicant’s conduct leading to these convictions (see paragraphs 28 and 29 of these Reasons). That conduct does not require re-ventilation. It is plain from the sentencing remarks of His Honour Justice Lynham DCJ that the victims of the Applicant’s domestic violence offending committed in August 2011 and then in January 2014, were committed against his then de-facto partner who can, for reasons that follow, be safely found to be a member of the Applicant’s family for present purposes.
I am mindful that the definition of “family violence” at paragraph 4(1) of the Direction refers to specific conduct perpetrated upon, “a member of the person’s family”. I will first turn my attention to determining whether the victim of the Applicant’s respective ‘assault occasioning bodily harm’ offences committed on August 2011 and January 2014 was a member of his family. Neither “family” nor “family member” are defined in the Direction. However, there are definitions which aid in the determination of the meaning of these terms in the Act.
The Acts Interpretation Act 1901 (Cth) (“AIA”) is of relevance to the interpretation of the Direction. Section 46 of the AIA provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[45] Section 5G of the Act relevantly provides that the member of a person’s family is, “…taken to include […] (a) de facto partner of the person; …”.
[45] See also Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR461 at para [22].
Section 4(AB) of the Family Law Act 1975 (Cth) (“FLA”) provides as follows:
“Definition of family violence etc.
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”[46]
[Bold in original]
[46] Note: this definition is verbatim the definition of “family violence” appearing in Direction No 90 at para [4(1)].
Section 4(1AB) of the FLA provides as follows:
“For the purposes of:
…
(aa) section 4AB;
…
a person (the first person) is a member of the family of another person (the second person) if:
…
the first person is or has been married to, or in a de facto relationship with, the second person;…”
[Bold in original]
It is, to my mind, notable that the definition of “family violence” in the FLA is stated in identical terms to the definition of that term appearing at paragraph 4(1) of the Direction. While the Direction does not contain a definition of the term “family member”, the FLA certainly does. Applying the foregoing FLA provisions to the instant facts, I am of the view that for the purposes of the definition of “domestic violence” in the FLA, the “first person” (i.e., the victim of the Applicant’s respective assault occasioning bodily harm convictions) can be found to be a member of the family of the “second person” (i.e. this Applicant) if the victim of those respective assault occasioning bodily harm convictions, “is or has been… in a de facto relationship with” this Applicant.
The Respondent has not adduced evidence about any impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, my usual approach would be to approach this Other Consideration (c) with caution and to not enter the realm of conjecture and speculate about the extent of any impact this Applicant’s offending has had, or would have, on any of its victims.
That said, I feel compelled to refer to two specific documents in the material which make plain the extent of the Applicant’s appalling offending on his then ten-year-old victim who is now seventeen years of age. The first document is a letter “To whom it may concern”, dated 8 September 2020, from Ms Judy Olsen, Clinical Nurse Consultant. It will be recalled that Ms Olsen’s letter was referred to by the learned sentencing judge that dealt with the Applicant at the sentencing episode on 10 September 2020. In her letter, Ms Olsen noted the dreadful impact this Applicant’s appalling offending had on his victim:
“[Victim’s name redacted] has been a client of Child and Youth Mental Health Service since June 2019. [Victim’s name redacted] has a diagnosis of Post-Traumatic Stress Disorder related to sexual assault that occurred some 5 years ago. This incident has had a significant impact on [Victim’s name redacted], requiring psychotropic medication and regular trauma therapy to help manage her symptoms. This incident has also had an impact on her family who have engaged in regular support from CYMHS to help manage [Victim’s name redacted] symptoms at home. [Victim’s name redacted] has ongoing symptoms and will require treatment into tile future.”[120]
[Tribunal redactions]
[120] R2, R2, page 12.
Equally troubling is a letter addressed to “To whom it may concern” from the victim’s parents which not only records the victim’s suffering but gives the reader an insight into the truly awful distress the Applicant’s appalling conduct has also caused her parents:
“Our daughter [Victim’s name redacted] is still in therapy to this day & has been in therapy for over 4 years now. She has post-traumatic stress disorder from what [the Applicant] did to her. We have just commenced Trauma Therapy with [locality redacted] Youth Mental Health which may take some time still. [Victim’s name redacted] has been medicated to try & help her, she has been on medication for six months. She continues to self-harm & says she doesn't want to live any more. He[121] (sic) anxiety has affected her schooling, activities, friendships, she has no self-confidence any more. [Victim’s name redacted] childhood was taken from her that night & I just pray that she'll move forward one day. We had a loving, bright, bubbly care free little girl & we long for her to heal. It is an everyday struggle to get her to school & her grades have never been the same.
Initially were using private psychologists for at least 3 years. We were referred to [locality redacted] Youth mental health by her private psychologist as she felt [Victim’s name redacted] may benefit from medication. The talk therapy was not enough.
It has cost us thousands of dollars in therapy & time lost to take [Victim’s name redacted] to her appointments, but we shall continue for as long as it takes & keep trying to help our daughter heal & move forward. We just want our girl back, this has affected her so much it’s been heartbreaking to say the least.
Thank you”
[Tribunal redactions]
[121] This word should, of course, read “Her”.
I must have regard to any evidence from a victim that may speak favourably about the Applicant remaining in Australia. Such a statement could possibly attract discussion pursuant to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[122] I am mindful of the comments of Kerr J in that decision to this effect:
“[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.”[123]
[122] [2021] FCA 1235.
[123] Ibid, paras [57]–[59].
As best as I understood the material, there is no such statement before the Tribunal.
I will err on the side of caution and not allocate weight to this Other Consideration (c) against the Applicant much as his appalling conduct against both this child-victim and adult women tempts me to do so. I will concur with the contention of the Respondent such that this Other Consideration (c) should be given neutral weight.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The initial exercise requires identification of the Applicant’s immediate family in Australia. The Applicant arrived here as a man entering his middle age. All of his immediate family comprising his mother, brother, sister, further brother, two adult sons and adult daughter are all Fijian nationals who all currently reside in Fiji. Having regard to the absence of any immediate family members in Australia, it would be unsafe to find that this component of Other Consideration (d) attracts any measure of weight in favour of revocation.
2. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant settled in Australia at the beginning of 2009 as a 41-year-old. He has not left Australia since settling here. He has spent something like a quarter of his life in this country.
It is necessary to make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. He finally settled in Australia at the beginning of 2009. He committed his first offence in Australia in August 2011 and was punished for that offence in July 2020. His first conviction in an Australian court occurred in May 2016 – some seven years after his arrival. I will, out of an abundance of caution, not adopt the date of commission of his first offence (August 2011) but rather go to the date of his first conviction in Australia (May 2016). A period of seven years post-arrival should not be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. I have already found the Applicant has an unconvincing and unremarkable history of employment in Australia despite his aforementioned qualifications. He came here when he was 41 and has just turned 55. His PCF talks about a one-o-two-month period of employment in 2018 doing, “mango picking”. He has also made a level of contribution to the community via his involvement in the provision of entertainment-type services during the Palm Island Mental Health week, as well as having voluntary involvement in the Fijian community in Townsville providing similar entertainment-type services.
The Applicant’s history of remunerative employment will have yielded little if any financial contribution to the Australian community in the form of taxation he may have paid for two months’ worth of mango picking work. His positive contributions to the Australian community can be described as little more than modest. The second tempering sub-element can only be applied to a slight extent in favour of the Applicant due to whatever modest contributions he has made to the Australian community. Thus, while the first tempering sub-element can be found to be neutral, the second one can be applied in his favour to attract a miniscule level of weight to this Other Consideration (d) for the purposes of revoking the decision to mandatory cancel his visa.
Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant referred to the following other close family members he has who reside in Australia: three uncles/aunts and five cousins. This part of the PCF also refers to the abovementioned five nieces/nephews whom I have discussed as part of my consideration of Primary Consideration 3. None of the three uncles/aunts or the five cousins have provided written or oral evidence and it is simply not possible nor safe to gauge the extent of the Applicant’s “other ties” to those other family members. There is a vague reference to those, “five cousins” in the transcript but none of this evidence seems very helpful.
As will be recalled, the Applicant referenced his cousins in Townsville during his evidence relating to the five nieces and nephews in Australia. It will also be recalled that the Applicant spoke of attending, “functions” at or with those cousins which caused him to make contact with the five nieces and nephews.[124] During his closing submissions, the Applicant referred to socialising with his, “cousins” in Australia. It is not clear from the transcript whether the Applicant is referring to the five cousins he says he has in Australia or whether he is referring to the two cousins who reside in Fiji who may have travelled here to spend time with him:
“APPLICANT: I am saying that, Your Honour and Mr Orchard, when I’m with my relatives or when I go out to be with my cousins, we normally drink kava, there is no alcohol. Even if we have alcohol, not hard spirits that I used to take. It’s just a couple of glasses of wine and that’s it. I tried to stay away from these hard spirits, especially Vodka. Most of the time I only drink kava.”[125]
[124] See generally, Transcript (1 August 2022), page 21, lines 33-45.
[125] Ibid, page 41, lines 1-6.
Out of an abundance of caution, and despite the unhelpful and unclear nature of the extent of his involvement with the claimed five cousins in Australia, I will allocate a slight level of weight in favour of a finding that these five cousins in Australia would be adversely impacted by an outcome resulting in the Applicant’s removal to Fiji. Whatever minor level of weight I have allocated to these other family links the Applicant may have in Australia, is predicated on the basis that those people are either Australia citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
It is also necessary to make reference to the extent of the Applicant’s social links in Australia. The material contains reference to several character references. I will deal with each in turn:
·Ms Leonie Wheelier[126] has known the Applicant for about four years and met him through a mutual interest in music. She is saddened to hear that the Applicant is having, “legal issues”. She has not spoken to the Applicant for, “…around two years, but I still consider him a good friend”. She expresses concern if the Applicant is returned to Fiji because she is under the belief that, “…his life will be in danger”. While she does not expressly refer to any adverse impact/s she will experience consequent upon his removal, she considers him, “…an asset to our culture and society.” She did not give oral evidence at the hearing;
·Ms Karen Cave[127] has known the Applicant since 2004. She describes him as, “…a famous musician in Fiji…”. She says the Applicant derives from, “a chiefly line, and he behaves in a manner that is respectful and proud.” She refers to his voluntary work in the musical/entertainment field for the Palm Island community. She says that, “…any offending and inappropriate behaviour was particular to the relationship and situation he was in at the time and is not at all reflective of his character”. She has, “grave concerns” for the Applicant’s safety if returned to Fiji. She does not say anything specific about being adversely impacted by his removal. She did not give oral evidence at the hearing;
·Mr Louis Jezard[128] has known the Applicant for approximately four years. He regards him as, “a quiet, gentle person who is always helpful to others.” He finds it, “…impossible to believe the allegations made against him. It would be totally out of character with what I know of him.” He does not say anything specific about experiencing an adverse impact in the event of the Applicant’s removal. He did not give oral evidence;
·Ms Cassandra McDonald[129] me the Applicant through volunteer work he did in 2017 at a Christian College (School) of which she is a Deputy Principal. She found the Applicant, “…to be genuine, quiet and respectful in all of his interactions with the school staff, community members and students.” She did not say anything specific about experiencing an adverse impact consequent upon the Applicant’s removal. She did not give oral evidence.
[126] See R1, G15, page 138. All quotations in this dot point paragraph are from this statement.
[127] See Ibid, G18, pages 143-144. All quotations in this dot point paragraph are from this statement.
[128] See Ibid, G19, page 145. All quotations in this dot point paragraph are from this statement.
[129] See Ibid, G20, page 146. All quotations in this dot point paragraph are from this statement.
Given that none of these abovementioned dot-pointed statements were provided in the form of duly sworn documents and given also that none of the makers of those statements gave oral evidence at the hearing, any weight allocable to that evidence must be tempered accordingly. At best, these statements attract a slight level of weight to this Other Consideration (d) for the purposes of revoking the decision to mandatorily cancel the Applicant’s visa. Whatever level of weight I have allocated to these social links the Applicant may have in Australia, is predicated on the basis that those people are either Australia citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a slight level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant and is rendered neutral. Overall, the Applicant’s links to the Australian community carry a slightlevel of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: carries a slight, but not determinative level of weight in favour of revocation;
(b)extent of impediments if removed: carries a slight level of weight in favour of revocation;
(c)impact on victims: is of neutral weight; and
(d)links to the Australian community: carries a slight level of weight in favour of revocation.
conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs very heavily against revocation;
·Primary Consideration 2: weighs very heavily against revocation;
·Primary Consideration 3: carries a very slight level of weight in favour of revocation;
·Primary Consideration 4: weighs very heavily against revocation;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 4 convincingly and determinatively outweigh the respective weights I have allocated to Primary Consideration 3 and Other Considerations (a), (b) and (d);
·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore does not favour revocation of the delegate’s decision made on 16 May 2022 which refused to revoke the mandatory cancellation of this Applicant’s visa.
Consequently, I find that there is not “another reason” why the Respondent’s decision of 16 May 2022 should be revoked.
decision
223.Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 16 May 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 223 (two-hundred-and-twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
....................[SGD]..............................
Associate
Dated: 31 August 2022
Date of hearing: 1 and 5 August 2022 Applicant:
Representative for the Respondent:
Self-Represented
Mr Christopher Orchard (Associate)
Solicitors for the Respondent: Sparke Helmore Lawyers (Brisbane)
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
R1
Section 37 T Documents (pages 1 – 212)
R
Various
7 June 2022
R2
Respondent’s Tender Bundle (pages 1 – 134)
R
Various
13 July 2022
R3
Respondent’s Statement of Facts, Issues and Contentions (pages 1 – 20)
R
13 July 2022
13 July 2022
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 – 5)
A
30 June 2022
30 June 2022
A2
Applicant’s SFIC – Attachments (pages 1 – 16)
- Text message extracts between Applicant and Sharon Roberts (pages 1 – 15)
- The Sun Newspaper (digital) extract – ‘182 Fijian Pacific Labour Scheme Workers Depart for Australia’ (page 16)
A
Various
30 June 2022
ANNEXURE B – Short Form Khalil Decision
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2022/4217 General Division ) Re: Emosi Ucataunisiga Lomata
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Senior Member Theodore Tavoularis
DATE: 9 August 2022
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 16 May 2022, to not revoke the cancellation of the Applicant’s Partner (Class BS) (Subclass 100) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
.…………………….[SGD]..…………………
Senior Member Theodore Tavoularis
- AGLC
- Lomata and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2835
- Case
- [2022] AATA 2835
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Applicant's criminal conduct was so serious that even strong countervailing considerations would be insufficient to justify revoking the mandatory cancellation. Specifically, the court had to assess the nature and seriousness of the Applicant's offending, the risk to the Australian community should he re-offend, and the extent of any rehabilitation achieved. The court also considered the primary and other considerations outlined in Ministerial Direction No. 90, including the protection of the Australian community, family violence, the best interests of minor children, community expectations, and non-refoulement obligations.
In its reasoning, the court found the Applicant's conduct to be "very serious," particularly the indecent treatment of a child and the contravention of a domestic violence order. The court noted the severe psychological harm suffered by the victim of the indecent treatment, as evidenced by sentencing remarks and a victim impact statement. The court also observed that the Applicant had not demonstrated significant rehabilitation, making vague references to a domestic violence course without detailing its benefits. Consequently, the court concluded that the risk of harm to individuals and the Australian community if the Applicant were to re-offend was substantial and potentially catastrophic.
The court affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa. The court found that the Applicant's criminal conduct was of such a serious nature that it outweighed any countervailing considerations, and therefore, there was no "another reason" to revoke the mandatory cancellation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles 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.(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.The Primary and Other Considerations Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision. The Primary Considerations I must take into account are:“(1) protection of the Australian community from criminal or other serious conduct;(2) whether the conduct engaged in constituted family violence;(3) the best interests of minor children in Australia; (4) expectations of the Australian community.”[17][17] Ibid, para [8]. The Other Considerations which, where relevant I must take into account, “include but are not limited to”:“a) international non-refoulement obligations; b) extent of impediments if removed; c) impact on victims; d) links to the Australian community, including:i) strength, nature and duration of ties to Australia; ii) impact on Australian business interests”[18][18] Ibid, para [9(1)].