Moegatuli Afegogo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2222

Moegatuli Afegogo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2222 (20 June 2024)
Division:GENERAL DIVISION
File Number(s): 2022/8178
Re:Moeilesami Moegatuli Afegogo
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:20 June 2024
Date of written reasons: 3 July 2024
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
.................[sgnd].......................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION ‒ mandatory cancellation of visa ‒ whether ‘another reason’ to revoke cancellation decision ‒ applicant stabs friend when drunk ‒ applicant remorseful ‒ applicant on short-term visa intended to assist Pacific Islander community members to earn money to return to their families ‒ applicant has no prior criminal record and there is no appreciable risk of recidivism ‒ decision set aside in these circumstances and revocation decision substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afegogo v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1128
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
3 July 2024

I delivered my decision in this matter on 20 June 2024. I decided to deliver my decision on that day because it would have been unfair to both parties to adjourn the matter. An adjournment would have required further submissions to be made (and perhaps evidence to be led) in light of the new direction that came into effect on 21 June 2024. I was clear both as to the appropriate outcome and my reasons when I delivered my decision on 20 June 2024. What follows is a statement of my reasons for that decision.[1]
[1] These reasons contain certain standard paragraphs; especially, paragraphs [7] and [21].
This is an application by Mr Moeilesami Moegatuli Afegogo seeking a review of a decision of the respondent’s delegate dated 29 September 2022. By this decision, the delegate declined to set aside an earlier mandatory cancellation of Mr Afegogo’s visa. This mandatory cancellation had taken place after Mr Afegogo was convicted of a serious offence involving violence in respect of which he received a sentence of 16 months, part of which he was required to serve on a full-time basis in jail. In these circumstances, his visa was required to be cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
Mr Afegogo made a timely application for internal review. The internal review delegate, whose decision has led to Mr Afegogo’s application to this Tribunal, had two questions to answer under section 501CA(4)(b) of the Act. The first question was whether Mr Afegogo passed the so-called ‘character test’ as defined in section 501. It was clear that he could not pass this test given the terms of s 501(6)(a) and (7)(c) of the Act, which provided that a person does not pass the character test when he or she has been sentenced to a term of imprisonment of at least 12 months. There is no doubt that the internal-review delegate’s decision in this regard was correct.
The second question arose given the negative answer to the first question. The internal-review delegate had to consider whether there was ‘another reason’ for the cancellation decision to be revoked (i.e., apart from Mr Afegogo passing the character test). In this regard, the delegate was required to apply any direction issued under s 499 of the Act. At the time of the delegate’s decision, Direction no. 90 was still in force. The delegate addressed the various considerations required to be addressed under that direction, and decided on balance that he or she was not satisfied that there was another reason to revoke the cancellation decision.[2] Accordingly, no action was taken under s 501(CA)(4) to revoke the cancellation decision.
[2] Ex R1, 22ff.
Hearing the matter afresh on the evidence adduced before me, I must address the same two questions as the delegate. I have already indicated that the first question was correctly answered by the delegate.
So far as the second question is concerned, I too must apply any direction issued under section 499 of the Act. Since the delegate’s decision, Direction no. 90 has been superseded by Direction no. 99, and I shall apply Direction no. 99 (hereafter ‘the Direction’).[3] Neither party suggested I should apply the earlier direction.
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[4] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[4] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I set out below the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Before summarising the applicant’s history, I would note certain matters. First, the visa that was cancelled was a temporary work visa granted to citizens of the Pacific Islands.[5] Mr Afegogo came to Australia on such a visa in 2021. The visa was time limited. The visa expired earlier this year in fact, and in advance of my decision on Mr Afegogo’s application. Whatever the result of my review, Mr Afegogo was always going to find himself without a valid visa at the end of my review.
[5] A Class GD Subclass 403 Temporary Work (international Relations) Visa.
Secondly, Mr Afegogo had already appeared before the Tribunal on an earlier occasion. On that occasion, the Tribunal affirmed the cancellation decision under review, but the Federal Court quashed that decision on 21 September 2023 and remitted the matter to the Tribunal for rehearing before a differently constituted Tribunal.[6] I was assigned to rehear the matter. By the time the matter came before me, however, the visa was close to expiry. That important aspect of the application was not made known to me by the respondent’s solicitors although it ought to have been, and I add that it was not apparent to me on the papers either.
[6] See Afegogo v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1128.
The fact that my decision could not result in the reinstatement of a valid visa for Mr Afegogo was a very important matter as he continued to be held in detention pending a rehearing of his application for review by a newly constituted Tribunal after the remittal decision by the Federal Court. Mr Afegogo ought to have been made aware of the fact that my decision could not lead to his release (at least for any appreciable time). Had he known, he might have chosen to return to Samoa to pursue his application to the Tribunal from there.
I now turn to the facts. Mr Afegogo was born in Samoa on 12 May 1995, and he was, therefore, 29 years of age at the time of the hearing before me. He speaks very little English and gave his evidence through an interpreter. His parents are both living in Samoa, and he has four siblings, who also reside there. He said he had a happy childhood there although the family was poor. His came to Australia to work and to remit his earnings to his family in Samoa. That is an important background matter because the visa scheme under which Mr Afegogo came to Australia has exactly this intention (namely, to assist Pacific Islander communities by offering residents the chance to work in Australia).
Mr Afegogo’s background in Samoa was uneventful. He has no criminal record there.[7] He gave evidence, which I accept, that he drank moderately in Samoa and not to excess. He would share beers with friends when his chores were completed, he said.
[7] See Ex A2.
He came to Australia in May 2021. I accept his evidence that he had seen an advertisement in Samoa calling for workers. He wanted to come to work in Australia so that he could send good money back to his family in Samoa, as I have said. That he was successful in gaining a visa was seen to be a boon to his family.
He arrived in Australia on 25 May 2021 and began work in a local abattoir in Junee, New South Wales. He met a fellow Samoan in Junee who, he says, became a friend,[8] although it would appear from the agreed facts before the sentencing Court that they did not know one another in Samoa.[9] A number of workers from the Pacific Islands were living in a hotel in Junee.[10] Mr Afegogo had been drinking to excess on the night in question (25 June 2021), and the agreed facts before the sentencing Court suggest he had consumed a very large number of drinks.[11] He and his Samoan friend had an argument, and it led to a physical fight, during which Mr Afegogo sustained an injury to his left eye.[12] The two men had to be separated by others. It would appear that Mr Afegogo tried to go to his friend’s room on two more occasions to ‘continue the altercation’.[13] He then returned with a bread knife which he had obtained from the kitchen, and he stabbed his friend in the back, under the armpit and also caused a laceration to the back of his friend’s neck. Others came and a triple-zero call was made.
[8] Ex R1, 85.
[9] Ibid, 74 [1].
[10] Paragraph [2] of the Agreed Facts (Ex R1, 74) records that they lived in Rooms 5 and 6 respectively at the hotel.
[11] Ex R1, 74 [5].
[12] Ibid, [6].
[13] Ibid, [7].
Mr Afegogo was observed kneeling beside the victim apologising to him and trying to help him by putting something on his chest.[14] The agreed facts record that the wound near the underarm penetrated into the next layer of underlying fat but not further, and that the wound on the back penetrated through the underlying fat and also ‘just through the next layer, the fascia surrounding the chest wall muscle’. It is recorded that ‘no critical structures were involved and the right lung/lung cavity was not reached’.[15]
[14] Ibid, 75 [10].
[15] Ibid, [14].
Mr Afegogo was arrested on the scene and it would appear that he was not granted bail. He was charged with reckless wounding. He was sentenced on 14 February 2022 to a term of imprisonment of 16 months jail commencing on 25 June 2021 and concluding on 24 October 2022. His non-parole period was fixed at nine months commencing on 25 June 2021 and concluding on 24 March 2022. It would appear that he was ordered to be released on parole on 24 March 2024.[16]
[16] Ibid, 70.
His visa was cancelled mandatorily in February 2022 while he was still in jail. As I have said, this mandatory cancellation was required under the Act.
Upon completing his non-parole period, Mr Afegogo was transferred to immigration detention, where he has remained for over two years while pursuing an internal review and his application in this Tribunal (after the internal-review delegate’s decision in September 2022).
After his conviction, Mr Afegogo met an Australian woman online, to whom I shall refer as Ms C to preserve the confidentiality of her identity as she has been a victim of serious family violence. Mr Afegogo maintained before me that he intends to marry Ms C, who is approximately 20 years his senior. She is free of her longstanding relationship with a violent partner. She ‘met’ Mr Afegogo online, and they have pursued a romantic interest in one another despite the language barriers (as Mr Afegogo does not speak English), despite his uncertain future, and despite also the formidable difficulties presented by Mr Afegogo’s incarceration and immigration detention. I shall return to this aspect of the matter in due course.
REASONS
Considerations arising under the Direction
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear in mind 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. In this respect, I am to have particular regard to the principle that entering or 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. I bear this principle in mind, and it has particular application in this case given the violence that was inflicted by Mr Afegogo on his victim.
By paragraph 8.1(2), I must give consideration to the nature and seriousness of Mr Afegogo’s conduct to date, and to the risk to the Australian community should he commit further offences or engage in other serious conduct.
In respect of the nature and seriousness of Mr Afegogo’s conduct to date, I must have regard to a number of matters set out in paragraphs (a) to (h) of paragraph 8.1.1(1). Under paragraph (a), I must consider as ‘very serious’ any violent crime, and I do so. Paragraph (c) requires me to have regard to court sentences, and I note that in this case a long sentence was imposed. There has been no frequency in Mr Afegogo’s offending in Australia, and he has no criminal record in Samoa.[17]
[17] Ex A2.
In considering the risk to the Australian community, I am required under paragraph 8.1.2(1) to have regard to the Government’s view that the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I must bear in mind 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. I bear these principles in mind.
Subparagraph (2) requires me to evaluate the risk Mr Afegogo poses to the Australian community. I am to have regard to two matters ‘cumulatively’. The first is the nature of the harm to individuals or the Australian community should he engage in further criminal or other serious conduct. It is clear that the violence in this case was very serious. Mr Afegogo was very drunk and therefore lacked control over his actions. It is fortunate that the wounds he inflicted on his victim were not more serious, but I bear in mind that if he were to get drunk again and wield a knife or other weapon, the injuries could be even more serious. That is a very important factor to weigh as drunken violence can have unpredictable consequences of the most serious kind.
I must take into account the likelihood of Mr Afegogo reoffending. I note that Mr Afegogo has no recorded criminal offences in Samoa and only one recorded offence in Australia.[18] I note further that he has not drunk for some three years now (as he has been in jail and immigration detention). In his evidence to me, he expressed credible remorse for his actions.[19] He indicated to me that he will not drink again now that he is seen where alcohol can lead him.[20] In its sentencing remarks, the Court noted that the offence, whilst ‘a serious example of reckless wounding, made worse by the fact that the offender used a knife’ was accompanied by a very small amount of planning only. It was noted that Mr Afegogo had never been in trouble before and the offence followed very shortly after a fight where Mr Afegogo suffered a significant injury.[21] The Court accepted that Mr Afegogo immediately apologised to his victim and apparently tried to help him. He co-operated with police, made admissions, and pleaded guilty straightaway.[22] I bear in mind also that Mr Afegogo, not appreciating when he gave evidence that his visa had expired, expressed before me a credible determination to resume work in Australia so that he could send money back to Samoa. That was the whole point, after all, of his being here in Australia.[23] Mr Afegogo, through his evidence, demonstrated insight into his offending. In my opinion, he understood clearly the link in his case between alcohol misuse and the violence that occurred.
[18] See Exs A2 and R1, 31-32.
[19] Reflected also in Ex A1.
[20] See also Ex R1, 78.
[21] Ibid, 39-40.
[22] Ibid, 40.
[23] See also Ex A1.

Mr Fyfe, appearing for the respondent, pointed out that Mr Afegogo had not undertaken counselling or psychological rehabilitation, and this was a factor militating against a conclusion that he posed a minimal risk. Underlying psychological factors predisposing this applicant to violence had not been addressed, he submitted.[24] But I have no psychological opinion before me supporting Mr Fyfe’s prime submission that violence inflicted on another, whilst the aggressor is disinhibited through intoxication, necessarily indicates an underlying psychological problem. Whilst it is true that not all men become violent when they are drunk, many do. Without expert evidence, I do not think I should proceed on the basis that drunken violence always betokens an unresolved mental condition in a drunken aggressor. It is well known that alcohol is, strictly speaking, a toxin and a disinhibitor, and that its effects vary widely upon community members. It is appropriate, in my opinion, to proceed on the basis that this is a case where there I have no evidence before me of a demonstrated psychological illness or condition.
[24] Although courses on violence were completed in detention: see Exs A5 and A6.
All in all, I would estimate the risk Mr Afegogo poses to the Australian community as very low. In this regard, I would also point out that as at the time of the internal-review delegate’s decision in September 2022, the visa had less than two years to run, and so Mr Afegogo’s risk profile was further diminished by the very short time that was left to him in Australia. If the recommendation I have made at the end of these reasons is followed, Mr Afegogo will be granted a short-term visa to allow him to work and send money back home for a period of time equivalent to what would have been the balance of his visa. But quite apart from the length of the balance of the visa, I regard Mr Afegogo’s risk of recidivism as very low.
I acknowledge, however, that the very low risk I have estimated must be considered ‘cumulatively’ with the nature of harm under paragraph 8.1.2 (2)(a), and I do so.
There is no family violence to consider: paragraph 8.2. The best interests of minor children do not arise either: paragraph 8.4. I must also consider, under paragraph 8.3, the strength, nature, and duration of ties to Australia. The applicant has no family in Australia. The applicant has, however, an important ‘social link’ with an Australian citizen, Ms C, to whom I have already referred. She has been the victim of serious family violence at the hands of a former male partner.
Mr Afegogo wishes to marry Ms C, and she wishes to marry him. In my opinion, I should not attach any weight to this relationship. First, it is clear to me on the evidence that Mr Afegogo could have no firm attachment to Ms C, and she could have no firm attachment to him. They can barely communicate with one another and have spent almost no time together, although I understand Ms C has visited Ms Afegogo whilst he has been in detention. The relationship has not developed, self-evidently, in a natural way, that is, where there has been time for a maturing and deepening of bonds of affection.
Moreover, I am firmly convinced that Mr Afegogo earnestly wishes to stay in Australia to earn money. I believe this is at least part of his motivation in seeking to maintain a relationship with an Australian woman. I do not say that he would not stand by the relationship if he were to stay in Australia. To the contrary, I believe he would, as he impressed me as an earnest man; but I believe the reason for the relationship is linked, at least partly, to his desire to support his family in Samoa by remaining in Australia and working.
So far as Ms C is concerned, I believe she has developed an infatuation for Mr Afegogo. Ms C indicated to me that she had been the victim of serious family violence in the past from a longstanding relationship. Nevertheless, she became interested in developing a relationship with Mr Afegogo, with whom she can barely communicate and who is some twenty years her junior. When I pointed out to her the apparent imprudence of her decision to seek an online relationship with a man who had been jailed for a violent assault ‒ especially given her own troubled past ‒ she said to me that she was looking to be loved again, and that she would know what to do if he were to become violent. In my opinion, although she would miss Mr Afegogo were he to leave Australia, it would be wrong to conclude that the relationship is more than a somewhat impetuous infatuation on her part.
All in all, I do not accord any weight to this relationship.
I must have regard to the expectations of the Australian community. Paragraph 8.5 sets out these expectations. Subparagraph (1) makes it clear that a non-citizen is expected by the Australian community to obey Australian laws. Where he or she fails to do so, as ‘a norm’ ‒ although not as an inflexible rule ‒ the community expects the Government not to allow the non-citizen to remain in Australia. Subparagraph (2) goes on to say that non-revocation of the mandatory cancellation of a visa may be appropriate simply because of character concerns or the nature of the offences in question. Clearly, drunken violence involving a knife is a very serious matter.
I note that the expectations as set out in paragraph 8.5 apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: see subparagraph (3). Moreover, I am to proceed on the basis of the Government’s views as articulated in paragraph 8.5 without independently assessing the community’s expectations in the case at hand: see subparagraph (4). I bear these principles in mind. It is clear this consideration counts substantially against Mr Afegogo.
I turn now to the so-called ‘other’ considerations in section 9. The considerations that are listed in paragraphs (a) to (d) of paragraph 9(1) are not exhaustive. I believe I am entitled in this case to have regard to the purpose of the visa in question, which is to enable Pacific Island community members to work in Australia and to return money to their communities. They do, of course, make a contribution to Australia, but I leave that to one side as any contribution they make to Australia should not be taken into account in this context. The visa does operate, however, to benefit poorer, and sometimes impoverished, families; and the remitted income can make a substantial difference to their welfare, and also to that of the community on the island in question as incoming money circulates through it. I think this is an important factor to bear in mind.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. At one level, it would be easy enough to conclude of a man who arrived in Australia on a limited visa, who then got drunk and assaulted a co-worker violently after just one month in the community, that he should be deported without further ado. But there is much to elicit concern in Mr Afegogo’s circumstances. He presented at the hearing as an extremely deferential man with exemplary and unfeigned courtesy and respect for the Tribunal, its processes, and also for Mr Fyfe, who appeared for the respondent. He understood fully how wrong he had been to get drunk and to get involved in a fight that night. He has mature insight into the need to cease all alcohol consumption, and his determination to assist his impoverished family in Samoa is admirable. He wishes to remain in Australia to assist them, not so much himself. He is prepared to marry an Australian woman who is twenty years his senior and with whom he could only have a remote prospect of having children in order to preserve his status here and thereby to work and to continue to support his family.
All in all, I have concluded that this is a case where alcohol has been responsible for substantial disinhibition. Alcohol was not something Mr Afegogo routinely consumed in Samoa in large quantities. His experience of substantial intoxication that night in Junee caused him to become disinhibited and violent towards a co-worker from Samoa. He immediately regretted the violent episode and sought to assist his victim. He co-operated with police and pleaded guilty at the first opportunity.
I must weigh very carefully what the Direction has to say about violence and the expectations of the Australian community. There are clear provisions in this regard. The Direction is framed against a background of very real concern with violence, amongst other antisocial behaviours, and understandably so. There are, I acknowledge, no ties to which I am prepared to accord weight. Nevertheless, I must assess carefully the individual circumstances of the case at hand,[25] and it is important to ensure the assessment process does not degenerate into a generic box-ticking exercise. This is a case where I believe the applicant poses no appreciable risk to the Australian community. He has well and truly learned his lesson; and he understands that he has largely squandered his opportunity to stay in Australia to earn money. I do not think there is any risk of this applicant reoffending if he were to remain in the Australian community. And there is a very strong interest in Mr Afegogo returning money to his family in Samoa in accordance with the intention of this class of visa.
[25] See paragraph 5.1(3) of the Direction.
FORMAL DECISION
In the particular circumstances of this case, I am satisfied on balance that there is ‘another reason’ to revoke the cancellation decision for the purposes of section 501CA(4)(b)(ii) of the Act. Accordingly, I shall set aside the decision under review and substitute a decision to this effect.
RECOMMENDATION
It is not a formal part of function to make recommendations, but I do draw to the respondent’s attention the unfortunate consequences for this particular applicant. My decision has been to revoke the cancellation decision. Had this decision been taken by the internal review delegate in September 2022, Mr Afegogo would have been released and would have resumed work for the balance of his visa. Unfortunately for him, this decision was not reached, and as a further unfortunate consequence for him, a bona fide earlier hearing before this Tribunal miscarried so that the proper consideration of his application was delayed while proceedings before the Federal Court were brought. Eventually, the matter was sent back to the Tribunal for reconsideration on 23 September 2023, but by this time, no appreciable time was left on his visa.
Moreover, as far as I can see, the respondent’s solicitors did not point out to Mr Afegogo, who does not understand the legal system at all, that his right to stay in Australia would most likely expire before he could receive any favourable determination from me. This would have brought home to him that his decision to remain in detention was pointless, whatever the outcome of my decision might be: the best-case scenario was one where I would reinstate an expired visa. It would have made more sense for him to return to Samoa and pursue his application from there.
In all these circumstances, I believe it is appropriate to recommend that Mr Afegogo be granted a short-term visa commensurate with the unexpired balance of his earlier visa so that he can earn some money to return to his family in Samoa and to redress the unfairness in his situation. Such a course would work practical justice in this case in my opinion, and I reiterate that recommendation explicitly to the respondent (having made it expressly on 20 June 2024 when I delivered my decision).
The formal decision of the Tribunal will be, however, as I have set out above in paragraph [42].
I certify that the preceding forty-six (46)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]………………………..
Associate
Dated: 3 July 2024
Date of hearing:  23 April; 31 May; 11, 20 June 2024
Advocate for the Applicant:      Self-Represented
Advocate for the Respondent:  Nicola Alroe; James Fyfe
MinterEllison