Moala and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 3834
•24 October 2022
Moala and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3834 (24 October 2022)
Division:GENERAL DIVISION
File Number 2022/6334
Re:Viliami Siu I Moala
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member George
Date of Decision: 24 October 2022
Date of Written Reasons: 16 November 2022
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 01 August 2022 that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa
………[Sgnd]………
Senior Member George
Catchwords
MIGRATION – Class BB Subclass 155 Five Year Resident Return visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – offending serious – decision under review set aside – decision to revoke the mandatory cancellation of the Applicant’s visa substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
16 November 2022
INTRODUCTION
Mr Moala (“the Applicant”), a citizen of the Kingdom of Tonga, was born in June 1988 and is aged 34 years.[1] The Applicant first arrived in Australia in December 1988, where he has substantially resided since.[2]
[1] Exhibit R2, G-Documents, G14, Attachment I, page 64.
[2] Exhibit R2, G-Documents, G37, Attachment FF, pages 179-180.
On 9 September 2014, the Applicant was granted a Class BB Subclass 155 Five Year Resident Return visa. On 14 January 2021, following criminal offending and a resultant term of imprisonment, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as he failed the “character test”.[3] The Applicant made representations, dated 10 February 2021, to have his visa cancellation revoked under s 501CA of the Act.[4]
[3] Exhibit R2, G-Documents, G54, Attachment WW, pages 226-232.
[4] Exhibit R2, G-Documents, G14, Attachment I, page 63.
On 1 August 2022, a delegate was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[5] This is the reviewable decision.
[5] Exhibit R2, G-Documents, G3, Attachment 1, page 12.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 4 August 2022.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit R2, G-Documents, G1, pages 1-6.
The hearing proceeded on 12 and 13 October 2022 by audio-visual means.
On 12 October 2022, the Applicant was not able to commence his evidence.[7]
[7] Transcript, page 31, lines 40-45.
On 13 October 2022, the following witnesses gave evidence:
(a)the Applicant;
(b)Ms Rebecca Parks, the Applicant’s former partner;
(c)Ms Mary Moala Penitani, the Applicant’s sister; and
(d)Mr Richard Mezenic, the Applicant’s former employer.
The Applicant’s mother, Ms Melanie Moala, was unavailable to offer herself for cross-examination due to her dialysis treatment.[8]
[8] Transcript, page 103, lines 40-41; page 105, lines 10-41.
The Applicant was represented by Mr Wassef of Sydney Side Lawyers. The Respondent was represented by Mr Burnham of Sparke Helmore.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
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 the Tribunal must be satisfied that there is another reason, pursuant to Direction No. 90 (“the Direction”),[9] to revoke the cancellation.
[9] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
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 relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 18 November 2020, in the Local Court of New South Wales at Fairfield, the Applicant was found guilty and sentenced to an aggregate term of imprisonment of 24 months for the following:[10]
(a)One count of supplying a commercial quantity of a prohibited drug;
(b)Two counts of possessing a prohibited drug; and
(c)Two counts of unlawfully possessing goods suspected stolen in or on premises, not being a motor vehicle.
[10] Exhibit R2, G-Documents, G7, Attachment B, pages 36-39; G8, Attachment C, pages 40-44.
The Local Court also made orders for the following:[11]
(a)One count of using an unregistered registrable Class A motor vehicle on road, for which the Applicant was convicted with no further penalty,
(b)One count of possessing ammunition without holding a licence, permit, or authority, for which the Applicant was fined; and
(c)One count of using a class A vehicle displaying a misleading number-plate, for which the Applicant was fined.
[11] Exhibit R2, G-Documents, G9, Attachment D, pages 45-47.
On 22 January 2021, on appeal in the District Court of New South Wales at Parramatta, Hanley DCJ varied the Applicant’s term of imprisonment to 18 months with a non-parole period of 10 months.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In considering whether to exercise its discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA has application.[12]
[12] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are stated as follows:
(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 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.
Paragraph 6 of the Direction provides 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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they 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; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND and offending
The Applicant arrived in Australia as an infant 34 years ago with his parents and his eldest sister, Ms Mary Penitani. The Applicant’s parents sought a better life for their children in Australia than what they had experienced in Tonga.[13] Two further sisters and a brother were subsequently born in Australia, all of whom are Australian citizens. The Applicant’s mother is an Australian citizen.[14] His father died unexpectedly and is buried in Australia.[15]
[13] Exhibit R2, G-Documents, G29, Attachment X, page 154.
[14] Exhibit R2, G-Documents, G14, Attachment I, page 72.
[15] Exhibit R2, G-Documents, G33, page 158.
The Applicant’s evidence is that he speaks very little of the Tongan language and is not literate in the Tongan written language. He is unfamiliar with “much of the Tongan culture”.[16]
[16] Exhibit R2, G-Documents, G14, Attachment I, page 76.
The Applicant was an adolescent when his father died. His father’s death caused him to take on new responsibilities. His mother’s evidence is that “Viliami went on to gain employment while continuing his schooling in order to support us financially”.[17] Mr Richard Mezenic, a civil engineer,[18] gave evidence that he gave the Applicant “his first job when he left school and he was always keen to work”,[19] and that “he was a very hard worker”.[20] The Applicant was employed as a formwork labourer for several years,[21] until weeks prior to the offending for which he was imprisoned, when his drug use became daily.[22]
[17] Exhibit R2, G-Documents, G29, page 154.
[18] Transcript, page 99, line1.
[19] Transcript, page 98, line 26.
[20] Transcript, page 98, line 27.
[21] Exhibit R2, G-Documents, G14, Attachment I, page 74.
[22] Exhibit R3, TB4, page 63.
The Tribunal notes that the Applicant has employment opportunities from Mr Mezenic if released into the Australian community, except that “he can’t be using drugs if he’s on the job”.[23] The health and safety reasons for such a strict prohibition of intemperance in the construction industry are obvious.
[23] Transcript, page 102, line 40.
On 18 November 2020, in the Local Court of New South Wales at Fairfield, the Applicant was found guilty and sentenced to a term of imprisonment principally for drug and property offences.[24] Magistrate Seagrave relevantly found:
The defendant was a drug user himself, that did not lessen to any important degree the seriousness of his offending. As a drug user the defendant would have [understood] the harm and dangers that can be caused to individuals and the community more broadly by the supply of illicit drugs. He is plainly an active dealer, his culpability was reasonably high and a deterrent sentence was warranted.
In sentencing offenders for this type of offence the purpose of sentencing that serve to protect the community by trying to prevent crime by deterring individuals is an important consideration here as is denunciation. By denunciation, Mr Moala, I am referring to condemnation for supply of prohibited drugs, an offence that causes enormous grief in the community, the social impact is substantial and drug usage is often a feature in other criminal conduct in the community.[25]
[Emphasis added]
[24] Exhibit R2, G-Documents, G7, Attachment B, pages 36-39; G8, Attachment C, pages 40-44.
[25] Exhibit R2, G-Documents, G8, Attachment C, page 42.
The Sentencing Assessment Report relied upon by Her Honour assessed the Applicant “at a Low-Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.[26]
[26] Exhibit R3, TB4, page 64.
On 22 January 2021, Hanley DCJ varied the Applicant’s term of imprisonment to 18 months with a non-parole period of 10 months. His Honour made the following remarks:
The offence of supplying is the most serious offence, it is a significant amount and despite the fact it was dealt with in the Local Court the Sentencing Assessment Report indicates he does have a prior conviction for illicit drugs, that has been explained to me by Ms Hile as a strip of buprenorphine which unfortunately is quite common in custody these days.
He split up with his previous partner. There is a long period of time when he has not committed any criminal offences of some 14 years. He has established a new relationship and has a child recently born that he has not seen. He has been a labourer for 12 weeks up to six weeks prior to his offending and has demonstrated a capacity to work and remain crime-free and presumably drug-free. Hopefully his new relationship will encourage him together with the fact he has a child to care for, not to commit any further criminal offences.
I am satisfied he has got reasonable prospects in view of the demonstration of the ability not to commit any offences for a significant period of time. It is concerning he minimised his role but in view of his plea I am satisfied his statements to the police were correct. He has not had any intervention in the past in relation to substance abuse, it is clear he needs some assistance in that regard and hopefully whilst on parole he will receive it. He is a low to medium risk of reoffending.[27]
[Emphasis added]
[27] Exhibit R2, G-Documents, G9, Attachment D, page 46.
The offence committed 14 years prior referred to an event on 31 July 2006.[28] On 10 October 2006, at the Local Court of New South Wales at Burwood, the Applicant was sentenced to a Community Service Order for the offence of selling a firearm to a person unauthorised to possess it.[29]
[28] Exhibit R2, G-Documents, G10, Attachment E, pages 48-51.
[29] Exhibit R2, G-Documents, G6, Attachment A, page 35.
The prior conviction for possession of illicit drugs in custody, referred to by His Honour, occurred on 3 June 2020, in the Local Court of New South Wales at Fairfield. There, the Applicant was found guilty and sentenced to term of imprisonment of one month for possession of a prohibited drug.[30]
[30] Exhibit R2, G-Documents, G6, page 34.
On 14 July 2020, the Applicant received disciplinary action for a drug related offence in custody. It was alleged “Moala to sell Beupe and tobacco collected from gaol to inmates in [various] pods”.[31] The outcome of that disciplinary action is unclear.
[31] Exhibit R3, TB4, page 51.
The Applicant has a son, born in September 2020.[32] The son is in the care of Ms Penitani with the support of the New South Wales Department of Communities and Justice.[33] Responsible officers of that Department are “of the belief that it’s very important to [the son’s] sense of personal identity and culture to maintain connection with his family and learn about his Tongan culture and family”.[34]
[32] Exhibit R2, G-Documents, G25, page 113.
[33] Exhibit R2, G-Documents, G27, Attachment V, pages 115-139.
[34] Exhibit R2, G-Documents, G26, page 114.
The Applicant was detained in immigration detention on the first occasion that he met his son.[35] They speak every second night.[36] If the Applicant is released into the Australian community, he intends to eventually – although not immediately – seek custody of his son. The Applicant reasoned:
I[t] would be a big move for me and him to live under one roof where we haven’t really reconciled while he’s been born. Right now I can’t do much but I would like to, if I was able to stay, build the relationship and be the father I can because, like, he’s restricted right now.[37]
[35] Transcript, page 46, line 25; Exhibit R2, G-Documents, G28, Attachment W, page 140.
[36] Transcript, page 46, line 26.
[37] Transcript, page 78, lines 37-41.
Ms Penitani is willing to allow the Applicant to live with her, and presumably his son also, if released into the Australian community.[38] Any such arrangement should attract the attention of the New South Wales Department of Communities and Justice. Consistent with that Department’s support for Ms Penitani, she has also been described by the New South Wales Department of Corrective Services as appearing “to be a pro-social influence” on the Applicant.[39]
[38] Exhibit R3, TB4, page 58.
[39] Exhibit R3, TB4, page 54.
The evidence before the Tribunal suggests that the Applicant turned to drug use, and supply, following unresolved trauma with his father’s death; combined with the effect of his separation with Ms Rebecca Parks, and his worry about his mother’s ill health. Ms Penitani gave evidence that:
Viliami has told me that losing our father at 41 yrs has left himself lost, I guess this trauma has affected him now. His long term relationship of 15 years with High School sweetheart Rebecca Parks came to an end in 2019 which also added to his change in behaviour.
Since then our mother’s health has declined and is terminally ill with kidney renal disease, she attends dialysis 3 times a week for 5 hours. Viliami has been a source of financial help when our mother stopped working, he helped provide food on our table and pay school fee’s for our younger brother and sisters, he became a father figure for our younger siblings.[40]
[40] Exhibit R2, G-Documents, G30, Attachment Y, page 155.
The Applicant’s younger sister, Ms Mele Moala, wrote:
Both my older siblings Mary Penitani and Viliami are the rock of our family keeping us in check. Since the passing of our late father till present, there is a hole in my heart knowing that Viliami is not here with us, it has brought a lot of pain to my family as he is always around home making sure his family was fed and safe.[41]
[41] Exhibit R2, G-Documents, G32, Attachment Z, page 156.
Similar evidence was provided by another of the Applicant’s younger sisters, Mrs Puli-Li-Loamanu Halahingano.[42]
[42] Exhibit R2, G-Documents, G32, Attachment AA, page 157.
A New South Wales Department of Corrective Services Case Note Report of 13 November 2020 broadly corroborates the evidence of the Applicant’s family:
Viliami reported that at the time of the offence he was living in the Tregear area with his partner. He had not worked for approximately 2 months and was supporting himself through the sale of drugs. The offender indicated that he was previously working in Canberra and returning to Sydney on weekends to spend time with his now ex-partner of 14 years. Viliami explained that they broke up and he started staying in Sydney with friends and family that are involved in drug use, started drinking every weekend and using drugs daily. He noted that he formed a new relationship and she became pregnant after 2 weeks of being together, still together but she is in rehab with their now 1 month old son. The offender acknowledged his drug use and that he was selling to supply his own habit. Despite this he minimised his role in the rest of the offending stating that the bullet was a souvenir, the car was his friends and that friend changed the plates (acknowledged that the car had no rego) and that some of the stolen goods were his friends. Viliami was able to identify the impact his offending has had on himself and his family, not the wider community. He conveyed his willingness to engage in intervention or complete CSO as required.[43]
[Emphasis added]
[43] Exhibit R3, TB4, page 52.
Ms Parks has been described by the New South Wales Department of Corrective Services as being “a pro social influence willing to work with community corrections”.[44] She gave evidence that she had known the Applicant for approximately 18 years, having met in school.[45] Although they are no longer in a romantic relationship, they remain friends.[46] Ms Parks was of the view that the Applicant became wayward due to the breakdown of their relationship and the deterioration of the Applicant’s mother’s health.[47] Ms Parks’ evidence was that the Applicant was aware of his problems with drugs. In her statement, Ms Parks wrote:
Through his time in Villawood we have discussed at length the need for Viliami to attend a rehabilitation center, upon his release, in order for him to combat his demons. I know that Viliami understands this and is wanting to complete a rehabilitation program to improve himself.[48]
[44] Exhibit R3, TB4, page 53.
[45] Transcript, page 90, line 2.
[46] Transcript, page 90, line 9.
[47] Transcript, page 90, lines 31-33.
[48] Exhibit A2.
Whilst in prison, the Applicant was assessed as suitable for a High Intensity Program Units (HIPU) program. On 12 January 2021, it was reported:
Viliami appeared open and honest and appeared to have a good understanding of his risks and triggers, he discussed his offending pathways and reported he had not used drugs in the past year and had been on the Bupomorphine program he reported that he would like to get back on the Bupomorphine program whilst in custody. Viliami has one offence in custody ? having drugs in his possession?.[49]
[49] Exhibit R3, TB4, page 55.
The Applicant was regarded as “a good influence on the younger group members” and he recognised his “behaviour as problematic and has accepted the need to address these behaviours in treatment”.[50] Regarding rehabilitation, the Applicant acknowledged that “There’s not much to offer while you’re in custody”.[51]
[50] Exhibit R3, TB4, page 58.
[51] Transcript, page 46, lines 9-10.
Following the completion of his term of imprisonment on 28 February 2021,[52] the Applicant entered immigration detention.
[52] Exhibit R3, TB4, page 60.
On 17 May 2021, contraband in the form of “1 x lighter, 4 x improvise smoking implements, 5x strips of foil and a small bag of unknown powder” were found by Detention Centre Officers.[53] The Applicant’s evidence is that he was “smoking ice” in May 2021.[54]
[53] Exhibit R2, G-Documents, G22, page 109.
[54] Transcript, page 73, line 12.
The Applicant admits having used drugs until about June or July 2022, or “A couple of months ago”.[55] This is consistent with further contraband being found by Detention Centre Officers on 9 June 2022.[56] This contraband included lighters, digital scales, and foil, which the Tribunal is satisfied was drug paraphernalia. The Applicant denies having dealt drugs in detention.[57] Despite having completed some online courses whilst in detention,[58] the Applicant said, “There not much help here to rehabilitate yourself”.[59]
[55] Transcript, page 73, line 20.
[56] Exhibit R2, G-Documents, G22, page 108.
[57] Transcript, page 73, line 34.
[58] Exhibit R2, G-Documents, G24, Attachment S, pages 111-112.
[59] Transcript, page 45, lines 14-15.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires 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 applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has not committed crimes of a violent or a sexual nature, nor have his crimes been committed against women or children. He has not committed acts of family violence.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) 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 (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Despite the contraband material discovered by Detention Centre Officers, and the Applicant’s use of drugs whilst in detention, he has not been convicted of a crime whilst in immigration detention.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[60]
[60] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
Her Honour remarked that the Applicant’s crimes required denunciation, and in particular “He is plainly an active dealer, his culpability was reasonably high and a deterrent sentence was warranted”.[61] This aspect of the Applicant’s offending was not overturned on appeal. Although the Applicant’s term of imprisonment was varied on appeal, the very fact that the Applicant received a head sentence of 18 months is a reflection of the objective seriousness of an Applicant’s offending
[61] Exhibit R2, G-Documents, G8, Attachment C, page 42.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
On 10 October 2006, the Applicant was sentence to a Community Service Order for the offence of selling a firearm to a person unauthorised to possess it.[62] He was not convicted for any further offences until 2020. The Applicant’s 2020 offending is clearly more serious than the 2006 offending. However, the Tribunal does not regard the escalation in seriousness between the 2006 and 2020 offending as constituting a ‘trend’.
[62] Exhibit R2, G-Documents, G6, Attachment A, page 35.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The evidence before the Tribunal does not indicate the cumulative effect of the Applicant’s offending.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence before the Tribunal that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Accordingly, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider factors (a), (b), (d), (e), (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh moderately against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(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:
(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 their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant admitted to last using drugs in June or July of this year. It has been submitted:
… that is a testament to the applicant’s honesty. He could have said anything to the tribunal but he comes before the tribunal an honest historian, one who the tribunal would accept by virtue of that admission has not engaged in prohibited drug use for a period of now four months, not an insignificant period of time, and it’s in the context of having limited support, in the context of having a newborn son, so close yet so far …[63]
[63] Transcript, page 115, lines 4-10.
The Tribunal accepts that the Applicant’s admissions are credible, but the Tribunal does not accept that an insignificant period has transpired since the Applicant’s most recent drug use. The Applicant clearly has an enduring drug misuse problem, which has led him to supply drugs, and is surely the root cause of most of his most recent offending.
Considering all the evidence before it and placing weight on the pro-social influences of Ms Penitani and Ms Parks, the Tribunal is satisfied that the Sentencing Assessment Report relied upon by the Courts in first instance and upon appeal remains substantially correct. The Tribunal is therefore satisfied that the Applicant remains at a low to medium risk of reoffending.
This consideration weighs moderately against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Family violence does not arise on the evidence before the Tribunal, and therefore this consideration is not relevant.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
Primary Consideration 3: The best interests of minor children in Australia AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3), respectively, contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.3(4) of the Direction requires the Tribunal to consider 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).
The Applicant does not currently perform a parental role in the life of his infant son, although he aspires to do so eventually. However, the Applicant has meaningful contact with his son by telephone.
Sub-paragraph (b) of paragraph 8.3(4) of the Direction causes a decision-maker to examine 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, and including any Court orders relating to parental access and care arrangements.
If the Applicant is released into the Australian community, and provided he abstains from drugs, the Applicant is likely to play a positive parental role in the upbringing of his infant son. The Applicant has a strong work history, when sober. He has previously provided financial and emotional support to his family.
Conversely, if the Applicant does not abstain from drugs, then it is unlikely that he will play a positive parental role in the future. In those circumstances, it seems likely that the Applicant would return before the Courts and that the New South Wales Department of Communities and Justice would also become aware of his intemperate conduct.
Sub-paragraph (c) of paragraph 8.3(4) of the Direction points to 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.
There is no evidence before the Tribunal that the Applicant’s prior conduct has had a negative effect on his son. Given that the Applicant has a low to medium risk of reoffending, the Tribunal is satisfied that the Applicant’s likely future conduct will be to abstain from drug use and supply. As such, the Tribunal is satisfied that the future conduct by the Applicant towards his son will be largely positive.
Sub-paragraph (d) of paragraph 8.3(4) of the Direction causes a decision-maker to consider 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. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[64]
[64] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44].
The Applicant largely communicates with his son by telephone and this method of communication may continue were the Applicant removed to Tonga. There is no evidence of any harm that would accrue to the Applicant’s son were he removed to Tonga.
Sub-paragraph (e) of paragraph 8.3(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.
Ms Penitani already fulfils a parental role in relation to the Applicant’s son.
Sub-paragraph (f) of paragraph 8.3(4) of the Direction causes a decision-maker to examine any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
Given the relative youth of the Applicant’s son, his views are not reasonably ascertainable.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (g) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
There is no evidence before the Tribunal that the Applicant’s son has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence before the Tribunal that the Applicant’s son has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Accordingly, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider factors (f), (g), and (h) of paragraph 8.3(4) of the Direction applies to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.3(4) of the Direction, in their totality, weighs moderately in favour of revoking the Applicant’s mandatory visa cancellation.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs moderately in favour of revoking the Applicant’s mandatory visa cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that 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.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[65]
[65] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision-maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant moved to Australia in 1988 and is now aged 34 years.
(b)The Applicant maintains strong family connections in Australia.
(c)The Applicant has a strong employment history in Australia.
(d)The Applicant has previously provided for his family following his father’s death.
(e)The Applicant has supplied a commercial quantity of a prohibited drug, in addition to several other offences.
(f)The Applicant has been imprisoned for his offending.
(g)The Applicant’s crimes are serious and raise character concerns.
The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations of him to obey Australian laws while in Australia by engaging in serious conduct. This breach of the Australian community’s expectations weighs moderately against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs moderately against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) International non-refoulement obligations
The Applicant does not pursue claims with respect to Australia’s non-refoulement obligations and no claim arises on the evidence. Accordingly, a consideration of Australia’s non-refoulement obligations is not relevant.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 34-year-old man who has not provided any evidence of physical ill-health.
The Tribunal accepts the Applicant’s evidence to the effect that there are substantial language and cultural barriers to him returning to Tonga, noting that he has lived in Australia since he was an infant.
It is uncontroversial that state provided medical and economic support is, in general terms, greater in Australia than in Tonga. Further, the Applicant has pro-social networks in Australia through Ms Parks and Ms Penitani. The evidence suggests that these pro-social networks will support the Applicant’s rehabilitation. He would lack such networks in Tonga.
On the balance of this consideration, the Tribunal is satisfied that the Applicant will face significant impediments if removed and therefore places heavy weight in favour of revoking the Applicant’s mandatory visa cancellation.
(c) Impact on victims
This Other Consideration 9(1)(c) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no current evidence before the Tribunal as to the views of any victims. Accordingly, this Other Consideration is not relevant.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2, respectively:
(a) the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.[66]
[66] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27].
The removal of the Applicant from Australia to Tonga would have an impact on his immediate family members in Australia, all of whom are Australian Citizens. This is particular so with regard to the Applicant’s mother, who is very unwell, and Ms Penitani, who is raising his son.
Given the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal places heavy weight in favour of revoking the Applicant’s mandatory visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
CONCLUSION
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 the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then 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, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community: weighs moderately against revocation of the cancellation of the Applicant’s visa.
(b)Primary Consideration 2 – Family violence: is not relevant.
(c)Primary Consideration 3 – Best interests of minor children: weighs moderately in favour of revoking the Applicant’s mandatory visa cancellation.
(d)Primary Consideration 4 – Expectations of the Australian community: weighs moderately against revocation of the cancellation of the Applicant’s visa.
(e)Other Consideration (a) – International non-refoulement obligations: is not relevant.
(f)Other Consideration (b) – Extent of impediments if removed: weighs heavily in favour of revoking the Applicant’s mandatory visa cancellation.
(g)Other Consideration (c) – Impact on victims: is not relevant.
(h)Other Consideration (d) – Links to the Australian community: weighs heavily in favour of revoking the Applicant’s mandatory visa cancellation.
The Tribunal has considered all of the Considerations in the Direction and the totality of the evidence. Combined, and by a slender margin, these weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal exercises the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 01 August 2022 that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision:
Date of Written Reasons:
24 October 2022
16 November 2022
Date of Hearing:
12 and 13 October 2022
Solicitor for the Applicant:
Mr M Wassef
Sydney Side LawyersSolicitor for the Respondent:
Mr M Burnham
Sparke HelmoreANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions R
04.10.2022
04.10.2022
12.10.2022
R2
G-documents
R
22.08.2022
22.08.2022
R3
Tender Bundle
R
04.10.2022
04.10.2022
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
A1
Applicant’s Statement of Facts, Issues and Contentions A
07.10.2022
07.10.2022
12.10.2022
A2
Statement – Rebecca Park
A
Undated
07.10.2022
A3
Statement – Richard Mezinec
A
04.10.2022
07.10.2022
0
8
0