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

[2021] AATA 2093

Mafi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2093 (5 July 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2333

Re:Destry Mafi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:5 July 2021

Place:Sydney

The decision under review is set aside and in substitution cancellation of the Applicant’s visa is revoked.

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

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 –  protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – strength, nature and duration of ties to Australia – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) s 501 and 501CA

CASES

CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48

Suleiman v Minister for Immigration and Border Protection

VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1045

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

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

REASONS FOR DECISION

Chris Puplick AM, Senior Member

5 July 2021

BACKGROUND

1. Mr Destry Mafi (the Applicant) is a citizen of New Zealand who was born in 1970 and after two previous trips arrived in Australia in 2006 as the holder of a Special Category (Temporary)(Class TY) (Subclass 444) visa.  He has lived here ever since.

2. On 9 September 2020 a delegate of the Minister’s (the Respondent) made a decision to cancel the Applicant’s visa and, after considering further representations from the Applicant, this decision was affirmed on 12 April 2021.

3. The Respondent’s initial decision was made under the provisions of subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) which mandates that a visa must be cancelled if the visa-holder is found to have a “substantial criminal record.”

4. A substantial criminal record is defined in paragraphs 501(6)(a) and 501(7)(c) of the Act as arising where a person has been sentenced to a term of imprisonment of 12 months or more.

5. On 16 April 2021 the Applicant appealed to this Tribunal seeking a revocation of the visa cancellation and the matter was heard, using the Microsoft Teams platform, subject to its COVID-19 protocols, on 24 June 2021.

   LEGISLATIVE FRAMEWORK

6. Subsection 501CA(4) of the Act provides:

   (4)  The Minister may revoke the original decision if:

   (a)  the person makes representations in accordance with the invitation; and

   (b)  the Minister is satisfied:

   (i)  that the person passes the character test (as defined by section 501); or

   (ii)  that there is another reason why the original decision should be revoked.

7. The Tribunal, standing in the shoes of the Minister thus has the power to revoke the original decision but since the Applicant clearly does not pass the character test (sub-paragraph 501CA(4)(b)(i)) it may only do so if it positively finds that there is “another reason” (sub-paragraph 501CA(4)(b)(ii)) to do so.

   APPLICANT’S RECORD OF OFFENDING

8. The Applicant has an extensive criminal history in both New Zealand and Australia albeit primarily as a result of motor vehicle offences and offences of petty larceny.

9. However, on 25 August 2020 the Applicant was before the Court on a constellation of charges, as follows:

   (a)five counts of possess prohibited drug;

   (b)two counts of take and drive conveyance without consent of owner

   (c)larceny;

   (d)possess housebreaking implements;

   (e)goods suspected stolen in/on premises (not motor vehicle);

   (f)common assault (DV); and

   (g)two counts of contravene prohibition/restriction in AVO (domestic).

10. These were all dealt with together and the Presiding Magistrate imposed a term of imprisonment amounting to 15 months with a non-parole period of 4 months. Since it is relevant to the subsequent considerations of the Tribunal, the critical part of the text of the Sentencing Magistrate’s remarks are set out below:

    I will take into account the various pleas of guilty and of course I will take into account that you have been in custody since 30 July and the sentence I am imposing will commence on that date. I do accept that there is a very, very strong need for rehabilitation but that of course depends on the attitude to it that Mr Mafi brings. To that end I accept as well that supervision by Community Corrections is desirable, the extent to which they will involve themselves of course I cannot control and so often it seems to fall short of need but Mr Mafi does need that presence in his life so I will be ordering supervision once he is released to parole.

    MR MAFI, THE RESULT IS THIS. NOTING THAT IT IS THE FIRST TIME YOU HAVE BEEN IN CUSTODY AND I HOPE THAT THERE ARE PROSPECTS OF REHABILITATION I WILL FIND SPECIAL CIRCUMSTANCES OUT OF THE COMBINATION OF THOSE TWO THINGS. YOU WILL SERVE A NON-PAROLE PERIOD OF FOUR MONTHS AND A SUBSEQUENT TERM OF 11 MONTHS SO THE HEAD SENTENCE IS 15 MONTHS, NON-PAROLE PERIOD FOUR MONTHS.

    It will be immediately apparent there is a very big difference between the two. Now, that allows for an extended period of supervision and I think I have been very considerate in relation to the non-parole period that I have imposed.

    That recognises the first time in custody and the hope at least that that period of custody would have made its own point and that you would be determined not to repeat it because let us have no illusions about this. The bar is now set at imprisonment. If there are more offences in the future of the kind that I am dealing with now there will be more gaol and I am working on the hypothesis that as a result of this period of time in custody that is something you will be determined not to repeat.

    AS I SAID, THE SENTENCES COMMENCE ON 30 JULY. YOU WILL BE ELIGIBLE FOR PAROLE ON 29 NOVEMBER, THEREAFTER TO BE SUPERVISED.

    BY WAY OF INDICATIVE SENTENCES ON CHARGE 935 ONE MONTH FOR SEQUENCE 1, 12 MONTHS FOR SEQUENCE 3, THREE MONTHS FOR SEQUENCE 5, THREE MONTHS FOR SEQUENCE 7. RESPECTIVE CHARGE 898 INDICATIVE SENTENCE OF THREE MONTHS. CHARGE 389 INDICATIVE SENTENCES OF ONE MONTH FOR EACH COUNT. CHARGE 286 INDICATIVE SENTENCE OF TWO MONTHS. CHARGE 695 INDICATIVE SENTENCE OF TWO MONTHS FOR BREACH OF – REVOKE THE ORDERS. IN RESPECT OF INDICATIVE SENTENCING FOR CHARGE 883 INDICATIVE SENTENCE OF TWO MONTHS. FOR CHARGE ENDING 320 AND SEQUENCES 1 AND 2 ONE MONTH, SEQUENCE 3 SIX MONTHS.

    Now all of what I just recited probably doesn’t mean much to you, Mr Mafi. What does mean something to you is that there is a period of four months, you will be out on 29 November. Thereafter it is up to you to stay out. I hope you will make it but you understand that more offending will see more time in gaol. [1]

    [1] G-documents at 39-40.

11. A point to be noticed is that the total sentence of 15 months resulted from the cumulative effect of a number of lesser sentences being served concurrently, although one of them was for a twelve-month period. In any case, subsection 501(7A) of the Act provides that where concurrent sentences are imposed “the whole of each term is to be counted in working out the total of the terms.”

12. Although the Respondent in their Statement of Facts, Issues and Contentions (SFIC) makes the point that “the underlying sentence imposed on the applicant being 15 months imprisonment, reflects the objective seriousness of the offences”[2] the Tribunal notes that the offences themselves are not offences at the most serious end of the spectrum and that the imposition of a non-parole period of only 4 months is also reflective of the Magistrate’s consideration of the gravity of the offending.

    [2] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [24(e)].

13. There are several other observations to make in relation to the Applicant’s offending behaviour. He told the Tribunal that his offences (the last of which was committed in 1998) in New Zealand[3] had taken place when he was younger and encountering some difficult family circumstances. His first recorded offence in Australia was in 2015 and hence there was a 17-year gap in his offending behaviour. He told the Tribunal, and the Sentencing Magistrate also noted that his offending was linked, in large part, to his misuse of illicit drugs. Under questioning by the Respondent’s representative, the Applicant stated that he first started using drugs (primarily methamphetamine and to a lesser extent marijuana) after the death of his partner Ms Nicole Peace in 2012.

    [3] G-documents at 36-37.

14. The Tribunal also notes that while the Applicant was before the courts on numerous occasions between 2015 and 2021, and had been fined numerous times, he had never been sentenced to any term of imprisonment, though he had on several occasions been granted either bonds or subject to section 10A convictions or community correction orders. Leaving aside, at this juncture, any reference to family or domestic violence issues, the matters before the courts were essentially motor vehicle, larceny or possession of prohibited drug offences. From 2015 to 2021 there has not been any discernible change in the seriousness of the offence committed.

    MINISTERIAL DIRECTION 90

15. The Minister has made a written direction pursuant to subsection 499(1) of the Migration Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Ministerial Direction 90). Subsection 2A of section 499 states that “A person or body must comply with a direction under subsection (1).”  This binds the Tribunal to make its decision in accordance with any clear statement of public policy contained therein.

16. The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles upon which the Direction is predicated. It relevantly provides:

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

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

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

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. 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 type 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.

17. Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

18. The primary considerations (paragraph 8 of the Direction) are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)best interests of minor children in Australia; and

    (d)expectations of the Australian community.

19. The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community, including:

    (i)the strength, nature and duration of ties to Australia; and

    (ii)the impact on Australian business interests.

20. The Tribunal is required to consider each of these items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, it stated in SZJSS that:

    [t]he weighing of various pieces of evidence is a matter for the Tribunal.[4]

    [4] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.

21. Once weight is assessed for each criteria, where there are competing assessments, it becomes a matter of the Tribunal engaging in a process of “calculus”[5]  to arrive at a final determination.

    PRIMARY CONSIDERATIONS

    [5] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].

    Protection of the Australian community and future risks

22. The Tribunal has already noted that many of the Applicant’s breaches of the law have been related to his misuse of illicit drugs. He explained to the Tribunal that he began using in or around 2012 following the death of his partner. There is no indication in the Applicant’s criminal record in New Zealand of any drug-related offences and those in Australia have been at the level of “possession”, resulting in either community correction orders or a fine, at least until the sentence of August 2020 when a possession offence was considered within the whole suite of offences dealt with on that occasion.

23. The Applicant states that he has never used alcohol and that he has made efforts to deal with his drug problem via counselling sessions and participation in group sessions while in custody.[6] A report from medical services in the detention centre confirms that the Applicant has attended some rehabilitation sessions at Westmead and that he had refrained from drug use for some time.[7] These initiatives or responses have not been tested in the community but the Tribunal accepts that the Applicant has made serious attempts to address his issues of drug misuse and believes he will continue to do so.

    [6] G-documents at [69].

    [7] IHMS Clinical Records tendered by Respondent as R1 (R1) at 7.

24. Although the Sentencing Magistrate made no comment about the Applicant’s possible risk of reoffending or his danger to the community, the fact that he imposed only a four months non-custodial sentence seems indicative of his view in this matter. There does not appear to be any pre-sentencing report or other evaluation of risk in the material before the Tribunal and so it feels justified in placing some weight on the Magistrate’s decision.

25. Both in his written submissions[8] and in his evidence to the Tribunal the Applicant has demonstrated a degree of remorse and contrition for his actions and an understanding of what would await him should he offend further.

    [8] G-documents at 47 and 70.

26. Such offences as he has committed do not indicate that any “harm”, in a physical sense was inflicted on any “victim” although the psychological impact of family violence offences (as will be addressed) should not be discounted.

27. The Applicant’s lengthy record of offending must lead the Tribunal to conclude that this criterion cannot weigh in favour of revocation, however the extent to which it weighs against is limited and not of great moment.

    Family violence

28. There is a clear indication of re-focussed public policy apparent in the introduction of Ministerial Direction 90 (Direction 90) in April 2021, replacing a predecessor Direction (Direction 79) which had been in place since February 2019. In particular, Direction 90 introduces the concept of “family violence” as one of the principal criteria to be taken into consideration by decision-makers. This reflects a clear statement of public policy that violent offences against women (and other vulnerable people) are to be regarded as matters of particular significance.

29. The term “family violence” is extensively defined in Direction 90 as:

    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. Examples of behaviour that may constitute family violence include:

    a)an assault; or

    b)a sexual assault or other sexually abusive behaviour; or

    c)stalking; or

    d)repeated derogatory taunts; or

    e)intentionally damaging or destroying property; or

    f)intentionally causing death or injury to an animal; or

    g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

    h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

    j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.

1. The Applicant appears to have been involved in a couple of domestic/family violence incidents involving two previous partners.

2. The first appears to be a matter involving a former partner Ms Carlie Qoriniasi in October 2016. After some sort of verbal argument at their then shared home, Ms Qoriniasi left that premises and took herself to the home of a friend, apparently (according to the Police Report) “to smoke marijuana”. The Applicant followed her there and some sort of altercation occurred in which the Police record that the Applicant pulled Ms Qoriniasi by the hair – a matter which he denied in evidence to the Tribunal. It was his version that the struggle took place over possession of a facecloth/face towel. The Applicant was issued with a Domestic Violence Order by the Police.[9] There is no immediate evidence before the Tribunal of any court outcome related to this matter.

   [9] Supplementary Documents at 40-41.

3. It then appears that this DVO was breached by the Applicant in March 2017 when he approached Ms Qoriniasi at her home (their previously shared residence) and attempted to prevent her from leaving those premises by attaching himself to the bonnet of her car as she attempted to drive off.[10] The Applicant told the Tribunal he breached the DVO because it was necessary for him to recover money from Ms Qoriniasi which he needed. This matter came before the court and the Applicant was fined $400.[11]

   [10] Ibid at 6-7.

   [11] G-documents at 55.

4. There was then an incident with a subsequent partner, Ms Jessica Keyes which took place in September 2017. In this instance a verbal argument turned into a situation during which each party threw things at each other, causing some damage to the premises and resulting in a physical scuffle, resulting in Ms Keyes falling over a suitcase and then locking herself in a bedroom. The Applicant left the house and was arrested some days later by the Police.[12] When the matter came to court the Applicant was placed on a 12 month (section 9) good behaviour bond.

   [12] Supplementary Documents at 142-143.

5. There is then some sort of incident which occurred in August 2020 which was referred to by the Sentencing Magistrate when he said:

   …August an assault on the same woman in her home. The facts describe the event. They also mention that she had used a walking stick in some way to try and fend you off. I do not know the extent to which she needed that or whether she suffered from a disability but it is mentioned in the facts…[13]

   [13] G-documents at 39.

6. This may have been a serious matter and while it appears that “the facts” (i.e. a Statement of Facts by the Police) were before the Magistrate they were not produced in the Tribunal, an omission noted by both the Respondent and the Tribunal itself.

7. As best as can be ascertained – in August 2020 Ms Keyes and the Applicant had a series of arguments, one of which resulted in Ms Keyes attempting (according to the Applicant) to “kick down the bedroom door”. This resulted in her sustaining a broken toe. The Applicant told the Tribunal the Police were called to this incident and assisted Ms Keyes to go to the hospital to have her injured toe treated. It then appears that she returned, either the same day or the next day and a further incident occurred. On this occasion Ms Keyes was apparently in possession of a walking stick which she had acquired because of her broken toe and this figured in whatever Police report was before the Magistrate. The Tribunal itself cannot be certain of anything at all in relation to this incident, although the Magistrate does not give any indication that Ms Keyes suffered any injury in the fracas.

8. The Applicant indicated that he did not (at the time) understand the terms “domestic violence” or “family violence” to encompass the concept of physical intimidation or verbal abuse.  He told the Tribunal that he “had never laid hands on a woman”. He said that he abhorred physical violence against women because he had seen his mother made a victim of such violence and his mother, in her letter to the Tribunal stated: “My son would never purposely hit any woman”.[14]

   [14] Letter of Vativa Hofeni Mafi dated 25 May 2021.

9. A report from the International Health and Medical Services records:

   Detainee disclosed that he has had some toxic relationships that have led to domestic violence, reported that he wasn’t physically abusive but had been verbally abusive to his partner.[15]

   [15] R1 at 8.

10. Verbal abuse is, of course, a form of family or domestic violence.  The Tribunal notes that the definition of “family violence” given in the Direction encompasses much more than just acts of physical violence. It also goes to matters such as making derogatory taunts, intentionally damaging property or acting in a controlling manner. The Tribunal itself has recognised that:

    [s]uch forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[16]

    [16] Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 at [48].

11. In VGJG, Deputy President Pascoe made clear:

    It is well established that psychological threats and intimidation can be just as harmful as actual physical violence and have long lasting negative effects for women and for their children.[17]

    [17] VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1045 at [89].

12. Without in any way diminishing the seriousness of verbal abuse or intimidating behaviour as a form of family violence it is nevertheless true that there is a spectrum of abuse and the Tribunal recognises this. There is no doubt that the Applicant’s partners suffered verbal abuse at his hands but there is nothing to indicate that either of them suffered physical harm.

13. That does not diminish the Applicant’s responsibility for his behaviour although the Tribunal accepts that he now has a proper understanding of what constitutes family violence and is aware and admits that such aspects of his past behaviour were quite unacceptable.

14. As far as this criterion is concerned it must weigh against the Applicant but unlike many other instances which have come before the Tribunal, it is not in itself determinative of an outcome and the weight given to this criterion is of a somewhat qualified and limited extent.

    Best interests of minor children in Australia

15. Although the Applicant has spoken of multiple nephews and nieces and cousins in Australia, some of whom presumably are minors, he has advanced an argument in relation to only one child, his nephew.

16. This nephew is incorrectly described in the Respondent’s SFIC as the Applicant’s “step-son”. [18] The Tribunal notes that the delegate making the original revocation decision was in error in describing him as “the son of Mr Mafi’s ex-partner Jessica Keyes”.[19]

    [18] Respondent’s SFIC at [36]. The child’s name is also given by erroneous transcription.

    [19] G-documents at 25.

17. The nephew is now nine years of age (born in 2011) and is the son of the Applicant’s sister Virginia. It appears that when he was born his mother was a single parent and that, at the age of about four months, he was given into the Applicant’s custody. At the time the Applicant was living with his partner Nicole Peace. However, tragically, Ms Peace died of cancer in 2012 whereupon the Applicant and his nephew resided with another sister until about 2016 or 2017 at which time the nephew returned to the custody of his mother.

18. The Applicant’s niece (Sharynlita Sapati) and other members of the Applicant’s family write attesting to the fact that this care was provided, and that the nephew regards the Applicant as his father and is enormously bonded and attached to him. Until the time of his incarceration the Applicant maintained close and continuing contact with his nephew although this has necessarily diminished due to his present circumstances.

19. This criterion weighs in favour of revocation and given the particular nature of the relationship between the Applicant and his nephew the Tribunal accords it significant weight.

    Expectations of the Australian community

20. Sub-paragraph 8.4(1) of the Direction provides that:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

21. Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

22. That norm referred to in the Direction is to be understood as providing that the Australian community expects non-citizens to obey Australian laws while in Australia; where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.

23. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub-paragraph 8.4(3)).

24. This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

25. This consideration has been the subject of extensive judicial discussion and is ultimately determinative.[20] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are articulated in relation to the former Direction 79, those principles are relevantly analogous with respect to Direction 90.

    [20] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.

26. It has further been held that the consideration is “[i]n substance… adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[21]

    [21] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.

27. There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to his (or any other consideration) is a matter for the Tribunal itself to determine.

28. The offences in this instance are not at the higher end of any spectrum and, as noted, the Tribunal does not believe that there is any on-going risk to the community posed by the Applicant.

29. On this basis, while this criterion must count against revocation it does so only to a very limited degree and is accorded little weight by the Tribunal in comparison with some of the other criteria.

    OTHER CONSIDERATIONS

30. Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that, “[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[22]  His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[23]

    [22] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].

    [23] Ibid at [26].

31. This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:

    “… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[24]

    [24] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].

32. Although these authorities refer to earlier versions of the Ministerial Direction they are still apposite in the consideration of Ministerial Direction 90.

    International non-refoulement obligations

33. There are none which arise in relation to this application. Hence this criterion is irrelevant in this determination and weighs neither in favour of nor against the Applicant.

    Extent of impediments if removed

34. The Applicant is a New Zealand citizen. He lived the first 35 years of his life in that country and is thus intimately familiar with its customs and mores. He is, by his own admission, in good health. He has some skills in terms of his holding a truck licence and he has a record of having worked for many years in Australia in the meat packing and transportation industries. He would not be incapable of living in New Zealand, accessing its social welfare, health and other services nor finding employment.

35. It is also the case that he has no continuing family ties in New Zealand and would suffer considerable emotional hardship to be separated from his family in Australia. Apart from the relationship with his nephew this matter is also considered further below.

36. Because of the impact which separation from his nephew and other family members could have upon him, this criterion counts marginally in favour of revocation.

    Impact on victims

37. To the extent that any victims can be identified they would be his two previous partners, Carlie Qoriniasi and Jessica Keyes. There is no evidence that the Applicant maintains any relationship with either of them, nor that they are, or would be, in any way affected by either his removal from or continuing presence in Australia.

38. The criterion is irrelevant in this determination and weighs neither in favour of nor against the Applicant.

    Links to the Australian community

39. The Applicant has extensive ties to the Australian community through the members of his family resident here. They include: his mother (and step-father); nine sisters, six uncles and aunts, ten nieces and nephews and at least 15 cousins. There is also an indication that he may have some brothers and half-brothers in Australia.

40. His 71-year old mother (Vativa Hofeni Mafi); his sister (Valerie Pasaloma), his younger brother (Tugaane Paremo) and his niece (Sharynlita Sapati) all provided letters to the Tribunal in support of the Applicant. Each stressed the closeness of family ties and in particular the relationship of the Applicant with his nephew.

41. Until fairly recently the Applicant had a history of employment in Australia and of being an economically productive member of the community.

42. However, no weight can be given to the element related to impact on Australian business interests as the Direction 90 itself confines this to instances which “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

43. Since 2006 the Applicant has not maintained any meaningful links to the community in New Zealand and it does not appear from his travel record that he has ever made any return trip to that country since his arrival here in 2006.[25]

    [25] G-documents at 74.

44. On balance this criterion counts with some degree of weight in favour of revocation.

    DISCUSSION

45. A consideration of all the relevant facts and criteria clearly indicate that this is a finely balanced matter, a point very properly conceded by the Respondent in their closing submissions.

46. There is no doubt that the Applicant has an extensive criminal record, albeit not encompassing what are generally regarded as particularly serious offences although including some issues of family violence of a non-physical nature.

47. The criteria which count against the Applicant, but only to a limited degree, are those of the protection of the community and that community’s expectations.

48. Because of the nature of Direction 90 and the public policy behind it the issue of family violence must count with greater weight against the Applicant but not to a determinative effect.

49. The criteria of international non-refoulement obligations and impact on victims are not genuinely relevant considerations.

50. The criteria of the best interests of the minor child (the Applicant’s nephew); the impediments likely to be suffered by  the extensive network of his family in Australia were the Applicant to be removed and the nature and extent of his links to the Australian community, all weigh in the Applicant’s favour and each of them does so with some degree of weight.

51. In making its determination, the Tribunal is bound to take into consideration the matters in Direction 90, but they are not the only or exclusive matters which it may be appropriate to consider.

52. The exhortation of Chief Justice Allsop[26] in Hands cannot be ignored. His Honour said:

    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[27]

    [26] Markovic and Steward JJ agreeing.

    [27] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]. Citations omitted.

53. Considered on balance, the calculus arrived at by the Tribunal is that the visa cancellation should be revoked as there is another reason to do so.

    DECISION

54. The decision under review is set aside and in substitution cancellation of the Applicant’s visa is revoked.

I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 5 July 2021

Date(s) of hearing:	24 June 2021
Applicant:	In person
Solicitors for the Respondent:	Ms J Strugnell, Minter Ellison