Misa and Minister for Home Affairs (Migration)

Misa and Minister for Home Affairs (Migration) [2018] AATA 1511 (8 June 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1703
Re:Pule Misa
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:8 June 2018
Place:Sydney

The decision under review is affirmed.
......................[sgd]..............................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – visa cancellation – character test – substantial criminal record – domestic violence – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children in Australia – expectations of Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A Poljak
8 June 2018

The applicant, Mr Pule Misa, is a citizen of Samoa. He first arrived in Australia on 17 June 2001 and subsequently became the holder of a Partner (provisional) (Class UF) visa on 30 March 2004. On 18 May 2012, the applicant was granted a Resident Return (subclass 155) visa (“the visa”).
On 11 August 2017, the Minister’s department (“the Department”) issued the applicant with a notice of intention to consider cancellation of the applicant’s visa. On 26 September 2017, the applicant responded to the notice and on 5 February 2018, a delegate of the Minister decided to exercise a discretion to cancel the applicant’s visa pursuant to section 501(2) of the Migration Act 1958 (Cth) (“the Act”). This is the decision under review in these proceedings (“the reviewable decision”).
The first issue for consideration is whether the applicant meets the character test as defined in section 501(6) the Act, and if not, the second issue for determination is whether the discretion available under section 501(2) of the Act to cancel the applicant’s visa should be exercised.
RELEVANT LEGISLATIVE PROVISIONS
Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. This is a discretionary power.
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7).
Relevantly, section 501(7)(d) provides that for the purposes of the character test, a substantial criminal record is defined as including circumstances where a person “has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review this decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“Direction 65”).
CHARACTER TEST
The applicant does not pass the character test in subsection 501(6) of the Act because he has a substantial criminal record as defined by section 501(7)(d).
On 13 April 2016, the applicant was sentenced to multiple terms of imprisonment amounting to a total of 16 months (plus 4 months on parole). Although the terms of imprisonment were served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms; pursuant to section 501(7A) of the Act.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part A, in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)   Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)   The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
The three primary considerations that the Tribunal must take into account are set out in paragraph 9 of the Direction as follows:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 9.1, namely:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the Applicant's conduct to date
Paragraph 9.1.1 of Direction 65 provides a number of factors relevant when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Factors which I consider are most relevant in these proceedings are the principle that violent and/or sexual crimes are viewed very seriously; the principle that crimes committed against vulnerable members of the community are serious; the frequency of the non-citizens’ offending and whether there is any trend of increasing seriousness; and the sentences imposed by the courts for a crime or crimes.
The applicant’s criminal history in Australia is detailed in the National Police Certificate dated 18 May 2017, and reveals multiple convictions. In summary the three most recent court outcomes are as follows:
(a)On 13 April 2016, the applicant was sentenced to imprisonment for common assault (4 months), two counts of common assault (DV) (4 months each) and stalk/intimidate intend fear physical harm (domestic) (4 months). These sentences were upheld on appeal;
(b)On 3 June 2009, the applicant was fined, ordered to pay costs and issued with a good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (Cth) for charges of common assault, stalk/intimidate intend fear of physical/mental harm, contravene prohibition/restriction in AVO (domestic);
(c)On 20 April 2007, the applicant was issued with a section 10 bond of 12 months for the offences of destroy or damage property <= $2000, fail to quit premises.
I consider the applicant’s criminal offending to date to be of a very serious nature. The three most recent offences (listed above) all include violence. Significantly, the two most recent offences are of the nature of domestic violence, committed against vulnerable victims and in front of children less than 18 years of age. The specific circumstances of the two most recent offences are detailed below.
The details of the offences of which the applicant was convicted on 3 June 2009, are contained in the New South Wales Police Fact Sheets attached to the Court Attendance Notice for the Liverpool Local Court (“the fact sheet”) and in documents produced under summons by the NSW Police Force. The offences occurred on the evening of 28 March 2009 against the applicant’s wife, who at the time was seven months pregnant with twins, and his father-in-law. The fact sheet details as follows:
“On arrival at the address, the [applicant’s wife] entered the garage of the residence which is located on the bottom floor. Inside the garage, the [applicant’s wife] observed the [applicant] inside the garage with the [applicant’s wife’s] 3 eldest children and two non-related children. The [applicant] was smoking a cigarette at the time. At this time, the [applicant] and the [applicant’s wife] began to have a verbal argument in relation to the [applicant] wanting to be taken to a dance party in Macquarie Fields…
The [applicant] threw a case of beer, which he had been holding, onto the roadway. He then picked up a small six-pack of beer from the ground and threw it on the road also. The [applicant] then picked up the original case of beer and threw it onto the road again. During this time, several cars drove past the location and the [applicant] made punching actions towards these vehicles. The [applicant] was standing in front of the vehicles so that they could not pass.
The [applicant’s wife] approached the [applicant] and attempted to calm him down verbally… While the [applicant] was talking to the [applicant’s wife], he was “in her face” so she attempted to push him away.
When the [applicant’s wife] pushed the [applicant] away, he immediately moved towards her and grabbed her neck with his right hand and began to push her backwards. At this time, the [applicant’s father-in-law] ran towards the [applicant] and tried to push him off the [applicant’s wife]. Once separated, the [applicant] continued to try and approach the [applicant’s wife], however, the [applicant’s father-in-law] stood between them.
At this time, the [applicant’s wife] called “000”. While the [applicant’s wife] was on the phone, the [applicant] was being held back by family friends and the [applicant’s father-in-law]. The [applicant] stated “I am going to go inside; I am going to get a knife and put it in one of you”…
Following the incident, the [applicant’s wife] stated that she has fears for the safety of her parents and her children should the [applicant] return to the location.”
The applicant was arrested and charged with offences of which he was ultimately convicted and an AVO was applied for and granted. The applicant was released on bail in the early hours of 29 March 2009. New South Wales Police documents record that the applicant went to his wife’s premises at around 5:30 AM, claiming that he wanted to collect his “stuff”. The police notes record that during this incident the applicant said to his wife, “give me my kids”. The applicant’s wife said in response, “I’ll call the police”. The applicant has then said, “the day will come when I kill you and your parents and I want my kids”. As a result of this incident the applicant was charged and convicted for contravening bail conditions which reflected AVO conditions.
The details of the most serious and recent offences committed in 2016 are set out in the New South Wales Police fact sheet, in Judgment of the District Court of NSW (on sentencing appeal) and in documents produced under summons by the NSW Police Force. The fact sheet identifies the victims of the offence as the applicant’s wife, his father-in-law and his wife’s cousin. It notes that the offences occurred on the evening of Sunday, 10 April 2016, when the applicant, his wife, his father-in-law, his wife’s cousin and their 8 children returned home after having earlier spent the day at their church. An argument developed between the applicant and his wife about who was to care for one of their youngest children.
In regards to the offences of common assault (DV) and stalk/intimidate intend fear physical harm (domestic), the fact sheet details as follows:
“…The argument became increasingly heated resulting in the [applicant] becoming aggressive towards [his wife], with his making threats to kill her, saying, “I’m going to kill you”, the [applicant] went into the dining room and picked up a wooden dining room chair, and walked towards his wife whilst saying this… The accused struck her on the left arm with the chair and then proceeded to punch her in the same arm causing pain and discomfort. The accused continued to threaten to kill her saying, “I’m going to kill you.”…
The incident continued outside with the [applicant] attempting to get the children away from the house. The argument continued between [his wife] and the [applicant] with his continuing to make threats to kill her again saying, “I’m going to kill you.” The [applicant] went to a tap in the front yard of the premises and picked up a brick and approached [his wife], again making threats to kill her and swear at her…”
In regards to the 2^nd offence of common assault (DV) and the offence of common assault, the fact sheet details as follows:
“Attempts were made by [the applicant’s father-in-law and his wife’s cousin] to stop the [applicant] from assaulting [his wife]. In the course of this the [applicant] grabbed [his father-in-law] around the throat, he tried to get away from the [applicant’s] grip, the [applicant] grabbed him on the left shoulder pushing him, causing him to fall to the floor. In response to [his wife’s cousin] attempts to intervene the [applicant] also grabbed her around throat using his right hand and pushing her against the stairs inside the house.”
Police arrived shortly afterwards. The fact sheet notes that the applicant “made spontaneous admissions to his trying to hit his wife because she had been verbally abusing him”. At the time of the offence, the police sought an Apprehended Domestic Violence Order (AVO) for the protection of the victims and the children present at the time of the incident. The applicant was taken to Liverpool Police Station and charged with the offences of which he was ultimately convicted.
The applicant appealed his four sentences to the District Court of NSW. I note the following remarks made by Judge Sides QC of the District Court in his Judgment on the appeal on sentencing:
“For reasons that are well known, personal and general deterrence loom large in offences such as this, as does the duty of the courts to protect the vulnerable, including children having to witness violence of this type in perpetrated upon their mother and grandfather.
This was a particularly serious assault because of the use of the weapon and because of the vulnerable part of the bodies of other 2 victims to which the assault was directed.
The custodial sentence of course is a sentence of last resort in the courts view it was called for in this case.”
Plainly the Liverpool Local Court and the District Court of New South Wales found the applicant’s offences committed in 2016 warranted a custodial sentence. This further highlights the significant nature of the applicant’s criminal conduct.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 9.1.2 of Direction 65, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Decision-makers must have regard, cumulatively, to (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.
The applicant claims that he accepts responsibility for his past offending, has attended counselling, sought assistance and support from his Church and has completed the antiviolence program ‘Enough is Enough’. I note that the applicant was released from prison less than 2 years ago. The applicant has not been charged with any further offences during this period however I consider that this is a relatively short period of time.
At hearing the applicant again expressed his remorse for his offending and made an emotional plea for a second chance so that he could stay in Australia with his children. Despite this showing of emotion, the applicant showed little insight into his conduct to date. At hearing, he attempted on numerous occasions to resile from the circumstances of the offences of which he was ultimately convicted. For example, in cross examination the applicant explained that in regards to the 2016 incident, he said that he never hit his wife with a chair and said that he tried to walk around the chair but it fell over and hit his wife on the leg. He adamantly stated that he didn’t pick it up and swing it at his wife. When challenged on this inconsistency, the applicant stuck to his story. This is despite his version of events being inconsistent with the details contained in the Judgment of the District Court on the sentencing appeal, the police fact sheet, and the documents produced under summons from the New South Wales Police. The applicant’s version of events was also contradicted by the evidence of his wife who attended and gave evidence before the Tribunal. The applicant’s wife provided a version of events consistent with that recorded in the Judgment of the District Court on the sentencing appeal and that of the police records.

Further, in regards to the 2016 incident, the applicant said at hearing that he could not recall punching his wife in the arm despite the fact that he wasn’t intoxicated at the time. He was asked in cross examination if punching his wife was a regular occurrence and this was the reason why he could not recall doing so in 2016, to which the applicant responded “not really”. When pressed about this answer, the applicant said that it all “happens very quickly” and he didn’t do this all the time. He was further pressed and asked what other occasions he has punched his wife to which the applicant responded that he had “never hurt or hit his wife”. This is plainly untrue and inconsistent with the plea of guilty he entered into in regards to the 2009 incident, his convictions for the 2016 incident and in light of the oral evidence of the applicant’s wife at hearing who confirmed that it was not the first time that she was hit by her husband. She stated that it usually happened when he was drunk or under the influence of alcohol but that he has not consumed alcohol to excess for “quite some time”. She further stated that it was not common. She said that she provokes him and he has slapped her once to stop her talking.
In regards to the risk of reoffending, the applicant claims that he is a changed man and that he wants to prove this to his family. The applicant’s wife gave evidence at hearing that the applicant was a “great man” and that he merely lacked understanding of a lot of things such as the law or the Australian way. She appeared to blame herself for the applicant’s past behaviour.
The applicant relies on a Pre-sentence Report dated 13 April 2016, which states that the applicant is “unlikely to benefit from a period of supervision by community corrections due to having a low risk of re-offending”. I note that the factors taken into consideration when making the report were, inter alia, that the applicant “did not attempt to justify his behaviour, admitting that he lost control and became aggressive, which he stated was out of character for him”. It is also noted that the applicant displayed insight into the seriousness of his offending behaviour. I cannot speak for how the applicant was in April 2016, however, as already stated above; at the time of making this decision I do not find that the applicant has insight into his past offending. During the proceedings before this Tribunal, he attempted to justify his behaviour by providing alternative facts to the offences of which he was ultimately convicted of in 2007, 2009 and 2016. I also do not agree with the Pre-sentence Report in regards to the applicant’s behaviour being “out of character”. The applicant’s behaviour to date shows an increasing level of seriousness with the two most recent offences being in the nature of domestic violence. As the evidence of the applicant’s wife implied, this behaviour was not out of character for the applicant prior to 2012, when he would consume alcohol to excess.
I note that the applicant’s father-in-law, Mr Maaelopa, also gave evidence at hearing. He said that his relationship with the applicant and his daughter was very good and that he has stayed with them and their children for many years. He also gave some evidence about the applicant’s drinking habits and how he had ceased drinking to excess a few years ago. He stated that the applicant had never touched him and had only ever grabbed his hands and pushed him to the floor. I do not give weight to Mr Maaelopa’s evidence as it was confused and inconsistent with the bulk of the evidence before the Tribunal.
Having careful regard to the nature of the applicant’s offending and the harm to victims if the applicant were to reoffend in the future, I find that the risk of the applicant reoffending could potentially be catastrophic. The applicant has threatened to kill his wife and father-in-law on multiple occasions and has on previous occasions threatened such harm while holding a weapon. This behaviour raises a serious concern that the applicant could inflict serious physical harm or even death should he reoffend. The likelihood of such an event ever coming into fruition, even if very unlikely, is a risk that I am not willing to accept. It is unacceptable.
For all of the above reasons, the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs heavily in the favour of cancellation.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 9.2 of Direction 65 provides that decision-makers must make a determination about whether cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made. If there are 2 or more relevant children, the best interests of each child should be given individual consideration to the extent that the interests may differ.
Sub-paragraph 9.2(4) sets out factors which must be considered where relevant. It provides:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fill a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant is the father of 8 children under the age of 18 years. He claims to play a positive role in each of his children’s lives and submits that his visa cancellation would have a detrimental impact on them. The applicant gave evidence at hearing that he has arranged his working hours so that he can look after his big children while his wife is at work. He states that he does activities with the children such as playing with them, taking them to the park, netball and athletics. Evidence from the applicant’s employer, Mr Giet, in the form of a statutory declaration declared on 9 May 2018, confirms that the applicant refused to take on a full-time role and instead wished to work casually in order to help his wife and to care for his 8 children while she is at work.
The applicant’s wife said at hearing that the applicant is a loving and caring father and that the children “adore him”. All 8 children were present at hearing in support of their father.
However, given the nature of the applicant’s criminal offending, I note and agree with the following remarks made by Judge Sides QC of the District Court in his Judgment on the appeal on sentencing:
“There is a letter from the wife pleading on his behalf. Included in the letter is her advising the Court that he is a very caring father, a proposition the Court does not accept. A caring father does not assault the mother of his children in front of the children or at all. The Court is satisfied that this letter, as is so frequently the case in incidents of domestic violence, is motivated by a high degree of dependency by the victim upon the appellant. The Court gives it very little weight.” [Emphasis added]
At hearing, the applicant confirmed that his children were present and saw the incident in 2016. The applicant was questioned about the impact of his offending conduct on his wife and children. He appeared not to have any insight into what this impact could be and instead said that as a result of his actions he had lost time with his family. There is no evidence before me of the direct impact on the applicant’s children from experiencing the physical and emotional trauma that resulted from the applicant’s criminal offending. The applicant’s wife gave evidence at hearing that the children were “tough kids” and that they “were understanding, because they knew it was not their dad”.
Given the applicant’s anger management problems and past domestic violence in the presence of his children, I have no confidence that the applicant would play a positive parenting role in his children’s lives in the future.
The applicant’s wife and her father currently care for the children and there is no evidence to suggest that this could not continue should the applicant’s visa be cancelled. It is also accepted that the applicant’s wife is the families’ main caregiver and breadwinner.
For all of the above reasons, I accept that this primary consideration weighs against cancellation however, I give this consideration limited weight given the nature of the applicant’s criminal offending in the presence of his children.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 9.3 of Direction 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the Visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The applicant arrived in Australia in 2001. It is accepted that the applicant has spent a lengthy period of time in Australia; however he has not spent most of his life here.
Plainly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly breached the trust of the Australian community by committing offences of a type that could endanger the safety of members of the community. This is particularly so given that the nature of domestic violence is one which often involves vulnerable members of the community. Their vulnerability can stem from a number of factors, relevantly here, the victim’s dependence on the applicant; a level of financial dependence; but most significantly, dependence on the applicant to be a father to their 8 children under the age of 18 years.
I expect that the Australian community would have very little tolerance for domestic violence and would expect that a non-citizen who commits such offences should not continue to hold a visa.
This primary consideration weighs strongly in favour of cancellation.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65
Paragraph 10 of Direction 65 provides that in deciding whether to cancel a visa, other considerations must be taken into account when relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed from Australia.
Relevant considerations in these proceedings are detailed below.
Strength, nature and duration of ties to Australia
Paragraph 10.2 of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the person began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The respondent acknowledges, and I accept, that the applicant has significant ties to Australia. He has a wife and 8 children in Australia under the age of 18 years. He arrived in Australia in 2001 and has spent a lengthy period of time here. The applicant’s wife and children are all Australian citizens. I accept that should his visa be cancelled, this would have a big impact on his family. However as noted above, the applicant’s wife is the primary caregiver and primary breadwinner of the family. She also has the help of her father to care for their children.
I have very limited evidence before me of positive contributions the applicant has made to the Australian community. The applicant relies on letters from Kalala Naufahu and Reverend Falo Vaomu from the Samoan Methodist Church in Bankstown. The letters speak of the applicant’s positive involvement with the local community and the congregation of the Samoan church. I have read and considered these letters of support.
This consideration weighs against cancellation.
Extent of impediments if removed
The primary impediment to returning to Samoa proffered by the applicant relates to the poor economic situation and the difficulty that he would face providing money to his family. However, the applicant is young and has no apparent health issues; he would not face any substantial language or cultural barriers if returned to Samoa; and, he has disclosed significant family ties still remaining in Samoa.
This consideration has neutral weight in considering the cancellation of the applicant’s visa.
CONCLUSION
As outlined above, the primary considerations in regards to the protection and expectations of the Australian community way strongly in favour of cancellation and the primary consideration in regards to the best interests of minor children in Australia was against cancellation.
On balance, and also having regard to other relevant considerations as set out above, I am satisfied that the protection of the Australian community having regard to the nature and seriousness of the applicant’s criminal offending outweighs all other considerations. Accordingly, the decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

........................[sgd]............................................
Associate
Dated: 8 June 2018

Date(s) of hearing: 31 May 2018

Solicitors for the Applicant: F.T. Tran Solicitors

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 1511

8 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	31 May 2018
Solicitors for the Applicant:	F.T. Tran Solicitors
Solicitors for the Respondent:	Sparke Helmore Lawyers