Mulitauaopele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 726

Mulitauaopele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 726 (11 April 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0541
Re:Emanuelu Manny Mulitauaopele
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:11 April 2022
Place:Sydney

The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.............................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – discretionary visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – impact on victims – strength, nature and duration of ties to Australia – other non-specified – special circumstances and needs of adult child with ASD – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 500 and 501
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmed and Minister for Immigration and Border Protection [2018] AATA 4458
Ali and Minister for Home Affairs [2018] AATA 25112
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bowdler and Minister for Immigration and Border Protection [2018] AATA 347
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13
El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247
Falzon v Minister for immigration and Border Protection [2018] HCA 2
FGBP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 253
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Grima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 761
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183
Kholi and Minister for Immigration and Border Protection [2017] AATA 1326
Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 424
Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 377
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795
Nguyen and Minister for Immigration and Border Protection [2017] AATA 1157
Nyamande and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4319
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
QKJY and Minister for Immigration and Border Protection [2017] AATA 820
R v J.T. [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
Safar and Minister for Immigration and Border Protection [2015] AATA 503
Shi v Migration Agents Registration Authority [2008] HCA 31
Slynt v Slynt [2017] FamCA 812
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Vaezmousavi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 366
Wang and Minister for immigration and Border Protection [2014] AATA 89
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border protection [2017] AATA 366
SECONDARY MATERIALS
DIRECTION NO. 90 – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 AND REVOCATION OF A MANDATORY CANCELLATION OF A VISA UNDER SECTION 501CA
NEW SOUTH WALES CENTRE FOR ROAD SAFETY, "DRIVING TOO FAST": FOR DECISION
Chris Puplick AM, Senior Member
11 April 2022
THE APPLICATION

Mr Emanuelu Manny Mulitauaopele (the Applicant) is a citizen of American Samoa where he was born in 1980.[1] He first arrived in Australia in November 1998 as the holder of a TE-428 visa[2] and was later granted a Class BB (Subclass 155) Five Year Return Resident visa.
[1] American Samoa is an “unincorporated territory” of the United States of America. Its citizens have some rights of entry to the United States but do not have citizenship rights at birth; they have the status of “non-citizen nationals.” Tuaua v United States No 13-5272 (D.C. Cir. 2015).
[2] G-documents at 330. This is a specialised visa – Temporary Entry for a Religious Worker requiring a religious worker sponsor. The visa was granted to the Applicant’s father to take up pastoral duties with his church in Australia and the Applicant was included as a dependent on that visa.
In October 1999 the Applicant was found guilty of a number of offences[3] and thereafter developed a lengthy record of offending, the last being recorded as a conviction in December 2017. The nature of these offences is discussed below.
[3] Ibid at 39.
On 14 February 2017, the Applicant was convicted of contravention of domestic violence order (aggravated offence) and wilful damage – domestic violence offence and sentenced to six months imprisonment and three months imprisonment respectively.[4]
[4] It was the Applicant’s evidence that in relation to the first (concurrent) sentence he served a period of three months in custody and that in relation to the second, he spent 3 months and 2 weeks in custody.
On 27 December 2017 the Applicant was convicted of contravention of domestic violence order (aggravated offence) and sentenced to a term of imprisonment of nine months.
When these matters came to the attention of the Minister, he decided (via his delegate) that the Applicant had “a substantial criminal record” and thus failed the character test as set out in paragraph 501(6)(a) of the Migration Act 1958 (Cth) (the Act). That section of the Act references paragraph 501(7)(d) which provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
The aggregation of the Applicant’s sentences, amounting to more than 12 months, (the sum of six, three and nine month sentences) triggered consideration of the exercise of the Minister’s powers (via his delegate) under subsection 501(2) of the Act which provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
On 24 June 2020 the Applicant was sent a Notice by the Department indicating that the Minister was considering the cancellation of his visa and inviting him to make representations as to why his visa should not be cancelled.
In response, the Applicant provided both a “Personal Circumstances Form” and a formal submission from his solicitors to that effect.[5]
[5] G-documents at 80 and 66 respectively.
On 15 October 2020 the Applicant was advised by the Department of its consideration of further material adverse to his position, which he responded to by filing further submissions via his solicitors.[6]
[6] Ibid at 174 and 177 respectively.
Under subsection 499(2A) of the Act, a decision-maker (in this instance, the Tribunal) must, in making its decision on revocation applications, take into account any directions given by the Minister in the form of Ministerial Directions.
On 8 March 2021 a new Ministerial Direction (Ministerial Direction 90 or MD90), given under section 499 of the Act came into effect replacing an earlier Ministerial Direction which had been in effect since December 2018 (Ministerial Direction 79). As the new Ministerial Direction contained directions which differed in a very substantial way from its predecessor in reference to matters of “family violence” (see below) the Department consequently wrote to the Applicant on 4 May 2021 setting out these new provisions. Again, the Applicant responded to this notification via his solicitors on 26 October 2021.[7]
[7] Ibid at 204 and 207 respectively.
On 8 November 2021 the Minister’s delegate made a determination to cancel the Applicant’s visa.
It should be noted that this cancellation under subsection 501(2) of the Act is an exercise of discretionary power (“the Minister may cancel”) which distinguishes it from certain other visa cancellations which are mandated, such as those made under subsection 501(3A) (“the Minister must cancel”).
Despite the decision being made on 8 November 2021 it does not appear that there was any formal notification to the Applicant (via his solicitor who was his nominee for these purposes) until 18 January 2022.[8] It was the Applicant’s sworn evidence that he found out about the visa cancellation in the first instance when he was advised by Centrelink that such a decision had been made and this was confirmed subsequently through his solicitor who received notification, via email, on 18 January 2022.
[8] G-documents at 9.
The Department’s formal letter of notification, addressed to the Applicant, was sent to an address (being a rehabilitation centre) where the Applicant was no longer in residence at the time.
There is no apparent explanation for the unusually long hiatus between the Delegate making their decision and the formal notification to the Applicant.
On 24 January 2022 the Applicant applied to this Tribunal for a review of the cancellation decision and the matter was heard on 23 and 24 March 2022. The hearing was conducted via the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols. The Tribunal sat in Sydney; the Applicant appeared from Brisbane Immigration Transit Accommodation Detention Centre; the witnesses appeared from the Brisbane offices of the Applicant’s solicitor; and the Minister’s representative participated from Canberra.
Under the provisions of paragraph 500 (6L)(c) of the Act the Tribunal is required to render its decision by 12 April 2022 or, in the alternative, the decision under review would be taken to have been affirmed.
APPLICANT’S PERSONAL NARRATIVE AND FAMILY RELATIONSHIPS
Family details
As already noted, the Applicant arrived in Australia in November 1998, aged 18 years. Prior to that he had lived exclusively in American Samoa where he completed his education up to Year 12. He arrived as a dependent on his father’s visa with his father arriving to take up responsibilities as a Pastor in the First Samoan Full Gospel Pentecostal Church in Brisbane.[9] At the time the Applicant was accompanied by both his parents, and a younger brother and sister.
[9] G-documents at 152, Statement of Te’afa’atasi Mulitauaopele dated 28 September 2020.
It was the sworn evidence of the Applicant’s mother that she and her family were reluctant to move to Australia but that they did so in accordance with the instructions of their Church. On arrival the family found it hard to cope with the “culture shock”[10] of living in Brisbane, so much so that the daughter returned to American Samoa to complete her schooling. Moreover, the family faced significant financial difficulties being without a house or car (both of which they had in American Samoa) and with her husband unable to find work to supplement inadequate payments from the Church. As a result, the Applicant did not pursue any further formal education but immediately found employment and became the principal breadwinner for the family.
[10] Ibid.
At his father’s church the Applicant met his future wife Belinda Elizabeth Mitchell, and they were married on 7 June 2003. Belinda describes herself as “an Australian citizen of Indigenous and Red Indian descent.”[11]
[11] G-documents at 99, Statutory Declaration of Belinda Mulitauaopele dated 13 October 2020 at [2].
The couple have four children, JO (now age 19 years); AG (age 17); RS (age 14) and JM (age 12). All these children are Australian citizens and identify as Indigenous Australians.
The Applicant and his children had always been very close to the Applicant’s father who passed away suddenly (aged 63) on 26 October 2019.
Employment history[12]
[12] G-documents at 95, Applicant’s Statutory Declaration dated 14 October 2020 at [8].
As noted, the Applicant found almost immediate employment on his arrival in Australia. He was able to provide the Tribunal with details of his employment (citing the names and addresses of employers) from 1998 to 2006, with an interruption of one year (2005/2006) when he enrolled in a Bible School. Between 2006 and 2009 he completed a three-year apprenticeship (Certificate III) as a carpenter, during which time he worked in numerous apprenticeship placements. He then provided further details of consistent employment from 2009 to 2016. From 2016 to 2019 he had periods of causal employment or was unemployed. According to the Applicant’s testimony this was a period in which he was dealing with issues of drug addiction which prevented him from retaining full-time employment. He had a period of full-time employment from 2019 through to the early part of 2020 when he entered a rehabilitation programme. From late in 2020 to the present time the Applicant has been in receipt of intermittent Centrelink benefits.
The record indicates a strong and consistent pattern of full-time employment from at least 1998 to 2016 and intermittent casual employment from around 2016 to 2019.
Drug use, accomodation and rehabilitation[13]
[13] G-documents at 184; Statutory Declaration By Applicant dated 31 October 2020.
At the age of about 19 years (late 1999) the Applicant started to use illicit drugs,[14] first smoking marijuana, then using speed, and by 2011 he had progressed to the use of crystal methamphetamine (“ice”). By 2013 he had become addicted to the use of “ice”.[15]
[14] Ibid. The Applicant, in his Statutory Declaration dated 31 October 2020 notes that he started using drugs around 20 years of age.
[15] Report of Dr Gavan Palk (Forensic Psychiatrist) dated 11 March 2022, Applicant’s Submissions at FAE5 (Palk Report).
At around the same time, that is 2013, is wife “kicked him out” of the family home and he commenced living with his parents.[16] However by 2015 his addiction and mental health issues had developed to a point that his parents, who were strict members of their congregation, “kicked [him] out of the house” and the Applicant lived on the street for some 4 months.[17]
[16] Ibid at 25.
[17] G-documents at 184, Applicant’s Statutory Declaration dated 31 October 2020 at [10].
In February 2017 the Applicant was sentenced to two terms of imprisonment (see below) of three and six months, to be served concurrently, 71 days of which he actually spent incarcerated.
On his release from gaol he returned to living with his wife and the children but in December 2017 he was sentenced to a further term of imprisonment of 9 months, of which he served 3 months and 2 weeks in custody.
Sometime in 2017 the Applicant admitted himself (under pressure from his father) to a rehabilitation centre run by a Pentecostal church organisation known as Transformations.[18] He remained in the centre for approximately two weeks but found that he was, according to his sworn evidence, not sufficiently committed to the programme and so he left. He returned to Transformations at their Gold Coast Centre on 16 March 2020 and remained there until 31 December 2020 (241 days).
[18] Palk Report at [6.5].
The Transformations programme is “a minimum of 12 months and is based on a Therapeutic Community Model.”[19] That model is based on strict adherence to a set of rules and also limits the contact which programme participants have with people outside the programme while they are in residence.
[19] G-documents at 145, Letter of Stuart Daneo (Case Manager at Transformations Gold Coast) dated 20 July 2020.
The Applicant failed to complete the 12-month programme as he was required to leave for a breach of the rules. According to his testimony, the inciting incident was use of inappropriate language during a verbal altercation with another participant.
The Applicant re-entered the Transformations programme at their centre in Hervey Bay on 17 March 2021 and remained there until 11 November 2021 (281 days). Again, he failed to complete the 12-month programme and on this occasion was “breached” for apparently absentmindedly taking a programme t-shirt belonging to another participant when all of his t-shirts were in the laundry.
Although the Applicant has not completed a full 12-months course at Transformations he has nevertheless spent more than 12 months enrolled in their courses and the Tribunal presumes that he has derived some benefit from this.
A summary of the Applicant’s accommodation arrangements is thus:
·1998 - 2002/2003: residing with his parents;
·2002/2003 - 2013: residing with his wife and children;
·2013 - 2016: residing with his parents;
·during 2016 for a period of some 4 months: homeless before returning to live with his parents;
·December 2016 - February 2017: in prison;[20]
·February 2017 - December 2017: residing with parents;
·December 2017 - March 2018: in prison;[21]
·March 2017 - March 2020: residing with parents with the exception of a two-week period in Transformations (Gold Coast location);
·March 2020 -December 2020: resident at Transformations (Gold Coast location);
·December 2020 - March 2021: residing with his widowed mother;
·March 2021 - November 2021: resident at Transformations (Hervey Bay);
·November 2021 - March 2022: residing with widowed mother; and
·March 2022: taken into Immigration detention.
[20] G-documents at 51.
[21] Ibid at 52.
APPLICANT’S OFFENDING BEHAVIOUR
There are three elements to the Applicant’s offending behaviour which might be categorised as:
·matters of family violence;
·“minor” offences related to drugs and stolen goods; and
·traffic offences.
In making any assessment of the overall conduct/impact of an applicant’s offending, and hence the risk of repeat or reoffending behaviour, the Tribunal must take a “helicopter” view and consider the offences in their totality even though offences may fall into different categories and hence raise different issues.
In Grima the Federal Court said, in relation to compliance with the analogous wording of an earlier Ministerial Direction (Ministerial Direction 79 or MD79), that:
[i]t was unnecessary for the Tribunal to reach a different conclusion on the risk that the applicant posed to the Australian community by reference to different categories of offending.”[22]
[22] Grima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 761 at [50] per Anderson J.
Family Violence

There are five incidents which involve what might be properly characterised as acts of “family violence.”
One of the principal purposes of the replacement of Ministerial Direction 79 with Ministerial Direction 90 was to insert, as a primary consideration which decision-makers must take into account, a new primary consideration, namely “family violence”. The relevance of designating “family violence” as a primary consideration is discussed below.
MD90 sets out the public policy behind the new emphasis on the importance of family violence as a primary consideration. Sub-paragraph 8.2(1) states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
The definitions section of MD90 gives a very broad definition of the term:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
On 30 June 2011 a Domestic Violence Order (DVO) was served on the Applicant containing conditions which required him, inter alia, to “be [of] good behaviour towards the aggrieved and must not commit domestic violence”.[23]
[23] Summonsed Material at 50.
Reference is made to prior incidents in the Queensland Police’s Objection to Bail Affidavit Annexure in relation to a 2016 DVO breach, the antecedents of which read as follows:
“The defendant has a history of violent domestic violence incidents with the aggrieved dating back to the first reported incident on the 3rd of June 2011 where the defendant has become agitated and violent towards the Aggrieved, and has struck her with his closed fist on the back of the shoulders area. Aggrieved has had to protect herself and her small three year old child and in doing so has received approximately six blows to the shoulder and arm area. This incident resulted in the making of a Protection Order.”[24]
[24] Summonsed Material at 16.
There are no further details of this incident before the Tribunal nor was any evidence about it adduced in the Tribunal hearings.
6 September 2011
According to the report of the Queensland Police:[25]
“At 8.55am on the 6th day of September 2011, police have attended the defendants address where the aggrieved had stayed the night prior as she had an argument with her mother at her current address and had no where else to go.
The complainant stated that she and the defendant had got into a verbal argument about the state of the house as there was an up and coming inspection, during this argument the defendant has picked up a X-Box game cover and thrown it at the complainant hitting her in the head and has causing [sic] it to bleed.
The defendant then left the address with 2 of the children. The complainant stated the defendant had taken her vehicle which was a green Toyota, registration number [redacted] and was unsure when the defendant would return it.”
[25] Ibid at 49.
In relation to this matter the Applicant appeared in court on 23 November 2011 where the record shows “no conviction recorded” and he was fined $450.00.[26]
[26] G-documents at 38.
12 October 2011
A further Queensland Police report records an incident involving the Applicant and his mother-in-law:[27]
“At approximately 8pm on Wednesday 12th October 2011 police attended the victims address after receiving a complaint of domestic violence. Police spoke with the victim and obtained a notebook statement in relation to a complaint of a breach of domestic violence.
The victim states on Wednesday 12th October 2011 at approximately 5:40pm she was riding her bicycle past the defendants address… and has stopped to say hello to her grandchildren who were playing in the front yard. The defendant was home at this time. Shortly after, the defendant has proceeded to drive a vehicle out from under the carport and down the driveway. A verbal altercation has taken place between the victim and the defendant as a result. The defendant has subsequently called the victim ‘a dog’ repeatedly before driving the vehicle back into the carport and alighting from it. The defendant has then attended his front yard which corners McQueen Lane and Southwell Street Kippa Ring. At this time the victim was stood on the roads shoulder on this corner closest to the defendants address. The defendant has then thrown a child’s plastic toy lawnmower in the direction of the victim, hitting the victims bicycle. The defendant has then thrown a metal laundry trolley in the direction of the victim, not hitting the victim. The victim has then ridden away on her bike.
On Tuesday the 18th of October 2011 police obtained a statement from a nearby neighbour. This statement corroborates the victims account that two items were thrown at her.
On Thursday the 20th of October 2011 the defendant voluntarily attended Redcliffe Police Station for the purpose of participating in an electronic record of interview. At the commencement of this interview the defendant was cautioned as per the PPRA 2000.
During this interview the defendant stated that on Wednesday the 12th of October 2011 he and the victim had become involved in a verbal altercation outside his home address of between the hours of 4:30pm and 6:00pm. The defendant made admissions to calling the victim ‘a dog’ during this altercation and then throwing a plastic children’s toy lawnmower and metal washing trolley in her direction. The defendant states these items were thrown approximately 10 seconds apart from each other. The defendant stated he threw the items with the intent to get rid of the victim not cause her physical injury. When asked if the defendant felt his behaviour would be considered 'good behaviour' the defendant stated that it wouldn't.”
[27] Summonsed Material at 52.
In relation to this matter the Applicant appeared in court on 14 November 2011 where the record shows that “no conviction was recorded” and he was fined $275.00.[28]
[28] Ibid at 39.
On 3 March 2016 a Protection Order was made in the Redcliffe Magistrates Court naming the Applicant as the respondent. It was amended on 9 March 2016 and contained a condition that the Applicant be of good behaviour towards his wife and not commit any act of domestic violence against her. The Applicant was provided with a copy of the order on 12 March 2016.[29]
[29] Summonsed Material at 55.
Again, it is unclear from the documentation as to what led directly to the issuance of this order or on whose application it was issued, although evidence suggests that it was the Police. The order itself was extended on a number of occasions and, in its latest iteration, remains in effect until 26 December 2022.[30]
[30] Agreed Chronology of Domestic Violence Orders, exhibited as document R1.
27 March 2016
The Police record states:[31]
“At 0943 hrs on the 27th day of March 2016, Police were detailed to attend a domestic disturbance at [redacted]. On arrival Police took up with the named person who stated that an argument broke out between herself and the defendant and that the defendant spat his food out at her. She further stated that when she went to phone Police, the defendant hit the mobile phone out of her hand. The argument continued until Police arrived.
Police spoke with the witness who is defendant’s wife and the named person’s daughter, who stated that since her mother (named person) moved into the family home in January 2016 there have been constant fights and arguments in the family. Today’s incident involved her mother splashing water in her husband’s face which led to him reacting by accidently spitting his food out over her.
At 1000hrs Police arrested the defendant and transported him to Redcliffe Watchhouse where he participated in an EROI. When questioned, the defendant stated that he was aware of the current domestic violence order and the conditions and that his behaviour may constitute a breach. The defendant admitted to calling the named person a ‘bitch’ and a "Dog" and yelling at her with anger. He also explained that he hit the named person’s hand in order to make the mobile phone drop from her grasp so she couldn't ring Police. he also stated that he did spit food at the named person but it was an accident as he went to yell at her whilst he had a mothful [sic] of food.”
[31] Summonsed material at 55.
This matter came before the Court on 8 April 2016 and on this occasion the record notes, “conviction recorded” together with a fine of $500.00.[32]
[32] G-documents at 38.
6 December 2016
The Police record states:[33]
“At about 7:00pm on Tuesday the 6^th Day of December 2016 the Aggrieved has attended at the Redcliffe Police Station and advised Police that the defendant is at her house and she is too scared to return there. She further advised Police that she relocated to her current residence about four (4) months ago and did not disclose that address to the defendant due to previous domestic violence incidents and her ongoing fear levels for her and her children. She stated that she first realised the defendant knew of her new address when he arrived there uninvited yesterday, on the 5th day of December 2016. She stated that the defendant left shortly after a verbal altercation took place with her in the front yard on that occasion.
The Aggrieved stated she returned home from work at about 6:30pm on the 6th day of December 2016 and upon entering her house she located the defendant inside with the lights off. She stated that she was confronted by the defendant demanding to stay there as he had no other place to go. The Aggrieved advised the defendant that he could not stay which resulted in him becoming verbally aggressive with the Aggrieved and threatened to smash her place up if she didn’t let him stay. The Aggrieved then left the house and attended at the Police Station and reported the matters outlined above.
At about 8:10pm on the 6th day of December 2016 Police attended at the Aggrieved’s residence and entered the home through a rear door where they located the defendant inside. The defendant advised Police that he will not be leaving the Aggrieved’s residence until he is ready. Police advised the defendant that the Aggrieved has asked for Police assistance to remove him from her dwelling. The defendant has then picked up the Aggrieved’s landline telephone and called the Aggrieved, stating ‘what did you get the fucking Police here for’. Police advised the defendant to hang up the phone which resulted in the defendant becoming enraged and throwing the phone down onto the tiled floor in the kitchen, causing it to smash into pieces.”
[33] Summonsed Material at 61.
This matter was dealt with before the Redcliffe Magistrates Court by Magistrate Bucknall on 14 February 2017. His Honour stated:
There's no ifs or buts, Sir. If you're not to go there, you're not to go there, full-stop. And the very reason why you're not to go there is because you find it impossible to adequately control yourself. The aggrieved in this matter is entitled to the protection of that order and the courts will make sure that she gets that protection. And if you want to continue to ignore the order then so be it, you will meet the consequence which will mostly likely be imprisonment. I'm also mindful, I won't go to the particular comments of the decision, but the decision of TZL v Queensland Police Service [2015] QDC 171 where a period of six months imprisonment was imposed where there was no actual personal physical violence, but contact.
In relation to these two charges I have considered all sentencing options. I have considered that your previous convictions and the flagrant disregard of this order means that a sentence of deterrent should be imposed to bring it home to you. I am satisfied it's appropriate no more severe, it should be sentenced to terms of imprisonment. In relation to the contravention of the protection order, you are convicted and sentenced to six months imprisonment. In relation to the wilful damage, you are convicted and sentenced to three months imprisonment. I order that they be served concurrent with each other.[34]
[34] G-documents at 50-51.
As the Applicant had been in custody for some time prior to his court appearance he was formally paroled and released on the same day.
26 December 2017
The final matter for consideration is reported by the Police as follows:[35]
"On Tuesday the 26th of December 2017 at approximately 10:00 pm, Police from Redcliffe Police Station have attended a priority code job to 109 Scarborough Road, Scarborough, after a female person had called for Police whispering ‘help me please’ down the phone from that address.
Whilst travelling to the address and approximately 20-30 metres from 109 Scarborough Road Police have located a male person walking south on Scarborough Road, outside 103 Scarborough Road. Whilst a second police vehicle travelled to the job address Police intercepted this male to ascertain if he had any involvement in the reported matter.
The male person produced a Queensland Driving licence confirming his identity as the defendant.
During initial questioning the defendant stated he had just come from [redacted] where he had been involved in an incident with his daughter Angel and ex-partner Belinda. The defendant stated Police didn't need to get involved as it was family business further adding that police had caused all his recent issues with his family. Police observed the male person to be aggressive in stance and evasive with his responses.
A second police vehicle attended 109 Scarborough Road and spoke with the Aggrieved and her four children.
Police immediately observed the family to be shaken and scared with what had happened. The aggrieved provided a formal statement to Police stating that the defendant was at the address (Breaching condition 4 of the current order) looking after the children. The defendant and the named child 13 years old [redacted], have become involved in a verbal argument after she was ‘acting up’. The aggrieved has intervened to try calm the situation with the defendant turning his frustrations to her. The aggrieved at this time was fearful for her own safety firmly believing the defendant was going to hit her. The named child, [redacted] has attempted to protect the aggrieved resulting in her being pushed to the floor by the defendant. The defendant has then continued with this physical attack by hitting the named child in the face with an open hand and further poking her in the left eye.
The aggrieved has then demanded the defendant leave, which he did. The defendant called the aggrieved on her phone a short time later wanting to come back to collect some of his property. The aggrieved stated the defendant was still angry and was calling her a ‘stupid slut’. The defendant was outside saying if he wasn't allowed in he would smash the place up.
The family have managed to quietly place the defendant's property out on the step without him noticing, and quickly ran and hid in a closet for their own safety. From within the closet, the family have called Police for ‘Help’”.
[35] Summonsed Material at 65.
This matter came to court on 27 December 2017 before Magistrate Vasta. The transcript of the proceedings records an exchange between Her Honour and the Applicant in which it is apparent that the Applicant was seeking to transfer blame for some of his actions onto the victims.
BENCH: Yes. And I hear people – respondents again and again give me their reasons as to why they do things, such as, “She made me angry.”
DEFENDANT: That is - - -
BENCH: “She knows how to push my buttons. She knows how to rile me up.” Can you hear in the back of your mind, “She makes me angry. She knows how to push my buttons. She knows how to rile me up.” She, she, she. Her fault. “It is her fault I had to smash the phone.”
DEFENDANT: Well, she is – she is the one - - -
BENCH: “It is her fault I had to hit her. It is her fault.”
DEFENDANT: She is [indistinct]
BENCH: “Or the 13 year-old’s fault that I had to hit her in the face.” You are continually blaming other people and it seems to be a pattern where you have not accepted responsibility since you were first breached in 2011, some seven years ago. You missed last Christmas because you were in custody because you tracked her down and, unfortunately, you are going to be now spending some time in prison so that you can think about your actions.[36]
[36] G-documents at 167.
Her Honour went on in her remarks to say:
I have taken into account the recent amendments to the Domestic Violence Act, the expectation that Court orders should be obeyed, and I am satisfied that no other sentence other than a term of imprisonment should be imposed. You are convicted and sentenced to nine months imprisonment. I set a parole release date after you have served three months. I consider that six months on parole should hopefully do the job of rehabilitating you; otherwise, you should really be taking up your own rehabilitation.
Now, your excuse is pathetic. That you want to discipline your 13 year-old from getting into drugs and misbehaving. What you are doing is you are going to be forcing her to run away from home to seek shelter from your violence and she is going to be walking into the arms of drug dealers. You need to understand that in our society, this is not the appropriate way to behave, and if you do not get that into your head, you will be very quickly spending many, many years in jail.
I am changing the domestic violence order. It has pretty much got every condition under the sun. However, it will now expire in five years time, and there is nothing more, really, the Courts can do other than continue to put you in jail.[37]
[37] Ibid at 168.
Finally, it should be noted that the Applicant’s wife applied for a variation in the AVO on 8 December 2020. In her application, which was to vary conditions to allow the Applicant (then resident in the Transformations programme on the Gold Coast) to have contact with his children after securing her permission, she wrote:
“I would like conditions 3-6 removed. Manny has had a long battle with drug addiction and has made great efforts to turn his life around and rehabilitate. The past issues have always been linked to his drug addiction and given the changes he has made in residential rehab, I’m not fearful of him. I want to be able to have contact with him to effectively co-parent our 4 children aged 11 to 18. Our oldest son has been diagnosed with autism and has behavioural issues. I rely on Manny to assist me with his disability support needs and want Manny to be able to visit the house to provide support for our son. It’s also important we can attend our children’s medical, school and other appointments together, as well as special occasions.”[38]
[38] G-documents at 193-194.
This variation of the DVO was agreed to.
“Minor” offences
The Applicant was before the Court in October 1999 (less than a year after his arrival in Australia) on charges related to possessing a “dangerous drug” (marijuana), which he and some friends were smoking, as well as drinking on school property. Although convicted, no convictions were recorded, and the Applicant was subject to some $700.00 in fines.

In November 2016 the Applicant appeared before the Court and was convicted of “unauthorised dealing with shop goods (maximum $150)”. This offence referred to the Applicant stealing petrol from a petrol station pump to the value of $10.02 and admitting that he had no intention of paying for it as he actually had no money.[39] He was fined $450.00 for this offence.
[39] Summonsed Material at 80.
By characterising these offences as “minor” the Tribunal does not seek to pretend that they did not take place but in the overall scheme of things they do not indicate that the Applicant is likely to reoffend in a way which poses any threat to the Australian community. They do however add to the cumulative weight of evidence adverse to the Applicant.
Driving Offences
The Applicant has a driving record which can only be described as lamentable. Between 2001 and 2016 he was convicted of no fewer than 14 offences related to speeding; 6 related to breaches of licence conditions and 3 of other traffic-related offences. He incurred fines in excess of $6,000.00. His licence was cancelled on several occasions.
The Tribunal does however note that none of the Applicant’s offences appear to have involved charges related to driving while under the influence of either alcohol or any illicit substance.
The Tribunal notes that the Applicant had his licence restored in 2015 and that since that date there are no traffic infringements recorded against him, although there appears to be an incident in August 2018 of him driving with a suspended/expired licence (the Applicant claiming to be unaware of those details). However, it does not appear that any charges arose from this incident.[40] Otherwise, he has not incurred any other traffic infringements, albeit that the time he was able to drive in this period was limited by his periods of incarceration or while he was in rehabilitation – a total of some 24 months.
[40] Summonsed Material at 77.
In total the Applicant has received approximately $6,500.00 in fines. It does not appear that any are outstanding and the evidence from the Applicant was to the effect that they have all been paid in full.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant gave sworn evidence before the Tribunal as did his wife, mother and eldest daughter (AG). Each was subject to cross-examination by the Respondent’s representative and the Tribunal itself. The Tribunal also had before it a report prepared by a forensic psychiatrist who was called to give evidence. In addition, there were statements tendered from the Applicant’s other children and a number of his supporters.
The Applicant
The Applicant gave lengthy evidence over two days and had submitted a number of Statutory Declarations prior to the commencement of the hearings. Much of his testimony went to confirming details of his family history, drug use, rehabilitation efforts and of the incidents of family violence set out above.
In relation to the family violence incidents the Applicant did not seek to challenge in any material sense the details set out above or to dispute the details of the various Police reports.
However, what he did emphasise was that, in virtually all instances his behaviour was affected by his being “high on ice” at the time of the offence. In evidence he admitted to the use of “ice” by injection two to three times per week at a cost of $300-$400 per week. He had a regular “dealer” who supplied him and while he continued to use “ice” up until 2019 he also reported being otherwise functionally competent throughout, holding down a job and not being unable to care for himself.
When pressed about his substance abuse he was frank and open in his responses and admitted that there would be a possibility of relapse into drug misuse if returned to the community but that this would be very low and ameliorated by his commitment to rebuild and safeguard his future relationship with his wife and children.
He acknowledged that in several of the incidents one or more of his children may have been present and have witnessed his aggressive behaviour towards their mother. He accepted the point put to him by the Respondent’s representative that this could have had a significant psychological and perhaps long-term impact on those children.
There was considerable discussion around the claim made by the Applicant that he considered, at the relevant time, that incidents involving his wife and himself, including matters of violence, were “family matters” – that they should be dealt with within “the family” and were not matters for external authorities such as the Police. Similarly, matters involving the “disciplining” of children, including by smacking, were equally “family matters”. In this he told the Tribunal he was reflecting his own life experiences and the cultural norms and mores of the Samoan culture in which he had grown up.
It was put to him by his representative that this approach to “family matters” was not compatible with the required standards of behaviour and personal responsibility in Australia and he readily accepted that this was the case and stated that he now understood that his previous actions were totally unacceptable and should never be repeated.
A similar point was raised arising from the exchange between himself and Magistrate Vasta (see above) where the Applicant appeared to be attempting to shift the blame for violent behaviour onto others, and again he accepted that this was unacceptable behaviour. This was particularly the case in terms of his relationship with his mother-in-law where, where admittedly there is evidence that she was a particularly difficult person to get along with and had never been supportive of her daughter’s choice in this relationship.
The Applicant was pressed at length about the details of his attempts to complete rehabilitation programmes and the Tribunal heard details about how he had not felt ready for admission to the programme on the first instance (the two weeks’ stay) and how he had been asked to leave on the other two occasions. The Tribunal accepts that the Applicant has made a serious effort, both under pressure from his father and on his own initiative to address his issues through voluntary entry into these programmes.
It appears that one of the most critical turning points in the Applicant’s life was the unexpected death of his father in October 2019. The Tribunal accepts that this had a shattering impact on him and that his understanding of his situation and his need to turn his life around became suddenly and starkly apparent to him.
The Applicant also provided details of the nature of his relationship with each of his children while accepting that there had been lengthy periods in his life when his contact with them was almost non-existent or at the very least highly restricted (albeit in large part due to his lengthy stints in Transformations).
The Applicant made, both orally and in his written submissions, significant statements of contrition and remorse. He explained that the combination of the loss of his father, his sessions in rehabilitation and his experiences in gaol had caused him to re-evaluate his previous behaviour and his aspirations for a changed and better life. These were, in turn, reinforced by a realisation that he was, in effect, at risk of losing his family were he to be required to leave Australia.
Although often overtly emotional and occasionally forgetful of details, the Tribunal found the Applicant to be a truthful and credible witness.
Belinda Mulitauaopele – the Applicant’s wife
The Applicant’s wife gave evidence and provided two written statements, the gravamen of which was that she desperately wanted her husband to remain in Australia and to help her parent her children.
She testified that she first met the Applicant, through the Church when she was aged 16. They married when she was 21 and have been married for 19 years.
She stated that she first noticed her husband’s changed behaviour in about 2011 when, due to the influence “of his friends”, he started using drugs. Prior to that date the Applicant had never hit her or behaved aggressively towards her but had instead been “loving and caring”. She asked him to leave the house when his drug use increased because she wanted “to protect [her] kids”.
When pressed as to how many times she may have been physically struck by the Applicant she indicated that there had been more than one instance but that she was unsure how many times this might have been the case. She also indicated that she believed that the Applicant was “high on ice” on each of those occasions.
Belinda was asked about her mother and the relationship between her and the Applicant. She described her mother as “very hard to get along with”, so much so that she had “lost [her] brother” (that is, no longer had contact with him) in the process.
It was an important part of her testimony to tell the Tribunal that she found it difficult to manage the behavioural challenges of her eldest son JO. He tends to have sudden violent outbursts which are often manifest in physical violence against her and threats to the other younger children. She stated that the Applicant, when present, was often able to get JO to calm down, but with the Applicant’s absence she felt increasingly vulnerable and fearful for the other children.
When asked what might happen if JO were permanently separated from his father she stated forcefully that he could “kill himself if he loses his Dad”.
Belinda is a welfare worker whose work often requires her to “overnight” in the homes of clients and needs caregiving assistance with her own children on these occasions. This is currently provided by the Applicant’s mother and occasionally by his brother.
Belinda made it clear that she would not move to Samoa were the Applicant to be returned there and the Respondent himself accepts that her status as an Indigenous Australian particularly militates against this proposition.
While accepting that the Applicant had had only limited contact with the family over his period of time after she required him to leave the family home, or he was in gaol or rehabilitation, Belinda was firm in her statements that she was satisfied that the Applicant had changed significantly since he stopped using drugs; that she wanted to re-establish their relationship and have him return to the family home; and that she needed his support both financially and for the development and protection of their children.
The Tribunal found Belinda to be a witness of both substance and credibility.
AG – the Applicant’s eldest daughter
AG is currently completing Year 12 and has high aspirations to attend university and graduate as a social worker because she would “like to help, having seen the problems of troubled teens.” She admitted that her relationship with her father had been “rocky” and that in his absence she had had to become “a second parent at home” for the other children. She confirmed the details given by Belinda about the issues concerning JO and his life challenges and also details of the impact on her and JO of the death of their grandfather, who she called her “best friend ever”.
AG told the Tribunal “it would be hard to process that my Dad could be sent away and that we wouldn’t see him any more.” She stated that after the Applicant returned from his last rehabilitation programme he was back to being “the good old Dad” and that for him to be sent way now would represent “a stab in the back”.
AG indicated that the incident in which the Applicant had struck her was the only occasion on which she had ever suffered any physical violence at his hands.
In her Statutory Declaration she writes:
“(12) Me and dad have always had a rocky relationship. Sometimes it was good sometimes it was bad. Obviously what my dad has done in the past had an impact on me. I would never say otherwise. He behaved very badly. I know though that his behaviour was related to his substance abuse issue, and his mental health issues. Yes, it has really hurt me. And the incident when he slapped me was very distressing to me.
(13) But, that does not mean that I want his visa to be cancelled and for him to have to move away from Australia for ever. I love my dad. I want to continue to have a relationship with him. It will always be a complicated relationship, but that doesn’t mean I don’t want any contact with him at all. I do not agree at all that I would be better off having no personal contact with him at all.”[41]
[41] Statutory Declaration of AG dated 11 March 2020, Applicant’s Submissions at FAE2.
AG was a highly credible witness, an impressive young woman, clear in her thinking and firm in her opinions. She did not seek to diminish her sense of disappointment with some aspects of her father’s behaviour, especially as manifest towards her mother and said of the Applicant that “I hope he’ll take this as a last opportunity to change.”
Te’afa’atasi Mulitauopele – the Applicant’s mother
The applicant’s mother gave evidence about the difficulties encountered by the whole family in their move to Australia (see above). She spoke strongly of the leadership role played by her late husband in the Church and the Samoan community and the shock to the family of his sudden passing. She described this event as “devastating” for the Applicant and as the catalyst for his change in attitude and behaviour.
She described her current role as, in effect, a primary carer for JO who is living with her but stated that she and all members of her family relied upon the return of the Applicant to the family to give it stability and an enhanced sense of financial security.
In a letter she acknowledged:
“My son didn’t always make the right choices but he is a great person who has been making great strides to get this life back on track and be here for his wife, children and family.”[42]
[42] G-documents at 152, Letter of Te’afa’atasi Mulitauaopele dated 28 September 2020.
She concluded her evidence to the Tribunal with the remark that she firmly believed that “God is the God of second chances”.
Dr Gavin Palk
Dr Palk is a highly experienced Forensic Psychiatrist who has worked extensively specialising in “the assessment and treatment of victims and perpetrators of violence and substance related crime”.[43] He has published extensively in major peer-reviewed journals.
[43] Palk Report at [1.5].
He provided as assessment report on the Applicant dated 11 March 2022 based upon both extensive oral discussions and the administration of a number of recognised psychometric tests.
He reported:
Reasons for offending
2.7 Mr. Mulitauaopele’s criminal offending seems directly related to his drug addiction and mental health concerns. As his drug use increased his behaviour worsened and his mental health deteriorated resulting episodes of psychosis and hospitalization. His anxiety and psychotic symptoms seemed to surface in 2015 and that time he was using ‘ice’ heavily. He reports hearing birds and felt like the birds were giving [him] messages. He recalled at time he was living with his parents [sic].
…
5.26 There was evidence of sincere remorse and regret as well as sham[e] and that the custodial environment has had a salutary impact. If Mr. Mulitauaopele can abstain from alcohol misuse and illicit substances as well as improve his relationship skills his risk of reoffending would be low.
…
6.4 As noted the grief over his father’s death and fear of losing his family led him to become more serious about addressing his drug and mental health problems. The writer has viewed various affidavits and letters (Mr. Stuart Daneo, case manager& Ms Tina Davis, CEO - Director, Bayside Transformations, Belinda’s affidavit and Mr. Mulitauaopele’s affidavit) attesting to his rehabilitation and the positive changes he has made in his life.
…
6.14 He fully understands the seriousness of his offending and drug problems and seems genuine in his expressed desire to remain a law-abiding person and good Christian man in the future.
…
8.4 The historical, clinical, and psychometric evidence suggests that Mr. Mulitauaopele is fully rehabilitated and is a low risk for re-offending. He has gained considerable insight into the factors that contributed to his drug dependency and offending. He continues to be involved in family counselling. His wife, Belinda believes she has her old loving, caring and gentle husband back. She no longer fears any further abuse from him. She is confidence [sic] her husband will not return to drug use as he knows he will lose her and his children. Belinda needs the support of her husband to help care for the children as she on occasion has to work overnight with her employment in the disability sector as a support worker. Mr. Mulitauaopele is insightful about the challenges he faces and is implementing the relapse prevention plan he developed at Transformations.
In addition to the written report, Dr Palk gave oral evidence to the Tribunal. It emerged from this evidence that Dr Palk had not been provided with a copy of the Applicant’s offending history as it applied to his driving record and his “minor” offences. In considering this, Dr Palk opined that consideration of these matters, which were not related to the Applicant’s substance abuse, would indicate some degree of a psychological tendency to ignore inconvenient rules such as those related to traffic regulations, however he did not believe that this would transfer to any other degree of anti-social behaviour.
Dr Palk noted that the Applicant had not completed any of the Transformation programmes (which he characterised as “impressive”) but added that “this does not demean his current commitment” to reform and rehabilitation.
However, at the end of the day, Dr Palk was very firm in stating that the cause of the Applicant’s violent offending behaviour was a consequence of his use of “ice” and that absent that usage the offences would not have occurred. Moreover, since he assessed that the Applicant had shown genuine remorse for his offences and had committed himself to abstinence from future drug use he believed that there was little to no cause for concern about any future offending.
Dr Palk stressed that the presence of a supportive domestic environment, steady employment and a high degree of motivation, are the most important factors in giving comfort that an applicant is unlikely to offend again.
WRITTEN SUBMISSIONS
The Tribunal received a number of written submissions in support of the Applicant and urging a decision to allow him to remain in Australia.
JO
JO is the Applicant’s eldest son who is now aged 19 years. Details of his life challenges are discussed below. In a Statutory Declaration he writes:
6. I have Autism Spectrum Disorder (ASD) Level 2, Attention Deficit Hyperactivity Disorder (ADHD), speech and language impairment, and an intellectual disability.
…
8. Sometimes I get very angry. I lose control. I lose some memory of things. I get angry when I don’t have my dad watching me play basketball.
…
10. I have been very emotional, scared and depressed since my dad’s visa was cancelled. It has made me feel suicidal. On the day that I found out the news, I tried to hurt myself with a knife and an axe. I felt extremely unstable and I felt out of control. I felt so scared and hurt and panicked. It made me remember how bad I felt when my grandfather passed away. I felt that I was reliving that all over again. It made me feel I was losing one of the most important people in my life all over again. It took my dad and mum hours to calm me down. They took me to see a psychologist. It’s hard to talk to the psychologist about how I feel.
11. My life was very difficult when I lost my grandfather. I was very close to him. I saw him every day. I was suicidal. I would leave the house with knives and my family would often find me at random places at 1 am or 2 am. I was put in the mental health unit three or four times at different hospitals.
12. I feel the same way about my dad as I did about my grandfather. We play basketball together, go hiking. We are very active together and we play sports together. I feel more calm and happier when I play sports with my dad. I don’t have anyone else to play sports with – just my support workers. It’s not the same with the support workers. I feel different about it.[44]
[44] Statutory Declaration of JO dated 11 March 2022, Applicant’s Submissions at FAE3.
Other children

The Applicant submitted three brief letters from the Applicant’s minor children (JM and RS).[45] Given their young ages (12 and 14 years respectively) the Tribunal simply acknowledges their stated wish to have their father remain with them.
[45] G-documents at 151 and 149 respectively.
Other representations
There are submissions before the Tribunal from the Applicant’s brother (Leiviifiloa Mulitauaopele III) confirming details of family relationships; from a pastor and prison chaplain (Brian Hicks) attesting to the Applicant’s since commitment to rehabilitation; from several Church members attesting to his good qualities; and from a previous employer attesting to the Applicant’s work skills and application.[46]
[46] G-documents at 154, 156, 158, 159 and 161.
THE DECISION BEFORE THE TRIBUNAL
The Tribunal has to make a simple determination – is the cancelation of the Applicant’s visa the “correct and preferrable”[47] decision to be made on the basis of the evidence before the Tribunal?
[47] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister [48] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[49]
[48] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[49] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
At the time that the Applicant was sent the original Notice advising that the Minister was considering the cancellation of his visa (24 June 2020), the relevant Ministerial Direction was Number 79 which came into effect on 20 December 2018.
However, on 8 March 2021 (that is, before the final decision was made to cancel the Applicant’s visa was made) a new Ministerial Direction, Number 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[50]
[50] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [51] to arrive at a final determination.
PRIMARY CONSIDERATIONS
[51] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Protection of the Australian Community and Family Violence
The Tribunal must consider both Primary Consideration 1 (protection of the Australian community) and Primary Consideration 2 (Family violence) separately in coming to a conclusion about what weight to give them in accordance with the various criteria set out in MD90. However, for the purposes of discussion, because the two issues are inexorably intertwined in this application they will be discussed together although evaluated separately.
The Tribunal must 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.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[52] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[52] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
There can be no argument, and indeed the Applicant does not suggest to the contrary, that the Applicant’s behaviour to date has involved serious conduct. He has been before the Courts on numerous occasions, he has taken a cavalier attitude to both the road rules and the provisions of domestic or apprehended violence orders. He has been physically violent with this wife on more than one occasion and with his daughter at least once. He has faced charges arising from minor drug offences and petty thievery.
The issue of seriousness is not in dispute.
The question is therefore what does the Tribunal assess as the risk of the Applicant reoffending?
Family violence
The Tribunal has discussed above the details of the Applicant’s offending and the circumstances of those offences. This is the primary consideration upon which the Respondent places greatest weight (along with protection and expectation criteria) against the Applicant, and understandably so.
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at sub-paragraph 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the non-citizen engage in further acts of family violence.
The approach which the Tribunal has taken to this criterion is well set out by the Respondent in its SFIC (at [45]) where it states:
In XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Senior Member Illingworth described domestic violence as a "scourge", a "plague and a "pernicious blight" upon the community.[53] Senior Member Puplick explained in Mendoza and Minister for Immigration and Border Protection:
"The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically."[54]
[53] Ali and Minister for Home Affairs [2018] AATA 25112 at [113]; R v J.T. [2007] NSWDC 377 at [1]; and Slynt v Slynt [2017] FamCA 812 at [1] respectively.
[54] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
The Respondent also draws attention to the statement of the Court in R v Saunders[55] in relation to intervention orders that:
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[55] [2017] SASCFC 86 at [37].
It also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:
Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.[56]
[56] R v Wood [1994] QCA 297
These proceedings of course have nothing to do with the issue of punishment, which has already been determined and over which this Tribunal has no remit,[57] but it is important to emphasise that breaches of DVOs are themselves matters of utmost seriousness. Subsection 501(2) “does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct”[58] but the consequences of such conduct need to be clearly understood by offenders.
[57] Falzon v Minister for immigration and Border Protection [2018] HCA 2 at [15].
[58] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76].
Simpliciter, the Applicant has been convicted of a number of offences involving serious acts of domestic violence, there is evidence in the documentation before the Tribunal of other such acts having taken place without leading to charges and the Applicant has shown a callous indifference and disregard for the significance of intervention/domestic violence orders issued to protect vulnerable people.
The question then becomes one of assessment of future risk.
As the Federal Court put it in FBGP:
It is important to recall that the Tribunal is obliged to undertake an assessment of risk of reoffending for the purpose of cl 13.1.2. The notion of risk involves possibility in the future The Tribunal is not obliged to make a finding as to whether or not the applicant will reoffend. The contextual background and circumstances of past offending are relevant to a rational and reasonably based assessment of the likelihood of the applicant being at risk of engaging in the kind of offending conduct that he had been involved in previously.[59]
[59] FGBP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 253 at [55]. Citations omitted. Cl 13.1.2 was an earlier version of this same Ministerial Direction requirement.
The Tribunal accepts that the “serious” family violence offences committed by the Applicant were primarily induced by his level, at the time, of substance abuse. It accepts that the Applicant understands this and is genuinely committed to a course of abstinence from drugs. It accepts that the Applicant was honest enough to say that the possibility of relapse always exists but that his motivations in terms of commitment to family are strong enough to enable him to resist any such temptations.
Although the Applicant has not completed any of the courses offered by Transformations the Tribunal gives credit to him for his efforts in this respect. In El Khoueiry[60] the Federal Court considered how to evaluate efforts undertaken by an applicant to attend various rehabilitation courses, some of which were not attended by successful outcomes. Consideration of what the Court there described as “significant rehabilitation efforts” must take a holistic approach and in this instance the Tribunal finds that the Applicant has been sincere in his efforts and that both his wife and daughter have noted positive changes resultant from his participation.
[60] El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247 per SC Derrington J at [70]-[73].
As Dr Palk noted in his oral evidence, if the Applicant returns to the community and has a stable home (with his wife and children), a stable job (he has a positive record as a tradesman), community support (provided by his family and Church members) and a major incentive not to re-offend (the heightened risk of removal from Australia), the Tribunal can safely come to the conclusion, as it has, that the Applicant’s risk of reoffending in terms of family violence is low.
Returning to the matter listed in sub-paragraph 8.2(3) of MD90, though acknowledging that it is difficult to establish the exact number of offences, it has to be noted that the family violence offences committed were frequent, although not of “increasing seriousness”. On the other hand, the Tribunal accepts that the Applicant has now (perhaps subsequent to the Court proceedings referenced above) accepted responsibility for his actions and gained some insight into their impact on his wife and family. He has made serious efforts at rehabilitation and there has been no re-offending since December 2017.
Traffic offences
In Lee, Senior Member Fairall made it clear that:
finding that a person is not of good character may be based on traffic offences alone. Second, relevant factors include: the seriousness of the offending; the presence of physical or personal injury; the penalty imposed for individual offences; the persistency and currency of offending; whether the offending triggered an expiation notice or required a court hearing, and whether there is anything to indicate a contemptuous disregard for the law, as opposed to simple carelessness or inexperience or ineptitude. Third, some categories of offending, such as high-range drink driving and excessive speeding, carry a particular stigma and weigh heavily against a finding of good character. Given the potential for serious injury or death arising from such behaviour, and the strong public safety measures taken by all road authorities, it may be inferred that a person who engages in such behaviour has little respect for the law, or, for that matter, fellow citizens.[61]
[61] Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 424.
The Tribunal has considered numerous cases where the driving record of the applicant was a significant factor in its final determinations.
Although in cases such as Vaezmousavi and Muhammad the Tribunal did not make adverse findings on the basis of unsatisfactory driving records, the weight of Tribunal decisions falls the other way.[62]
[62] Vaezmousavi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 366; Muhammad and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 795.
Persistent disregard of traffic laws constituting “a singular disregard for the safety of himself and others on the roads” (Nguyen[63]); “a blatant disregard for the road rules and the general safety and welfare of members of the Australian community” (QXJY[64]); “an ongoing disregard for the laws of Australia and accepted community values” (Kohli[65]); have all weighed heavily with the Tribunal in making adverse character findings.
[63] Nguyen and Minister for Immigration and Border Protection [2017] AATA 1157 at [32].
[64] QKJY and Minister for Immigration and Border Protection [2017] AATA 820 at [41].
[65] Kholi and Minister for Immigration and Border Protection [2017] AATA 1326 at [20].
In Safar the Tribunal commented that “the pattern of behaviour and the number and kinds of offences raise serious concerns”[66] which the Tribunal needed to take into account.
[66] Safar and Minister for Immigration and Border Protection [2015] AATA 503 at [28].

One of the matters which MD90 requires the Tribunal to assess is both the likelihood of an applicant reoffending but equally the risk and the nature of harm of further serious misconduct (at sub-paragraph 8.1.2 (2)(a)). To date, mercifully, it does not appear that anyone has suffered physical harm as a result of the Applicant’s repeated traffic offences, most of which involved “speeding” (including in school zones) which itself is identified as the major cause of road trauma, death and injury.[67] Placing others at risk,[68] or compromising “the essential safety of the community”[69] are serious matters.
[67] “Driving too fast is the single biggest contributor to death and injury on NSW roads. Speeding consistently contributes to around 41 per cent of road fatalities and 24 per cent of serious injuries each year. This means almost 150 lives lost and 1,270 people seriously injured each year.” New South Wales Centre for Road Safety, “Driving too fast”: Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [15].
[69] Wang and Minister for immigration and Border Protection [2014] AATA 89 at [7].
In Zaya the Tribunal expressed this as the Tribunal “tak[ing] these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious”.[70]
[70] Zaya and Minister for Immigration and Border protection [2017] AATA 366 at [54].
In Bartlett the Tribunal remarked that:
failure to understand right from wrong when operating a motor vehicle… can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.[71]
[71] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [45].
In both Nyamande[72] and Marron-Fanning[73] the Tribunal concluded that the applicant’s driving record was sufficient to exclude him from meeting the good character test (in analogous citizenship matters).
[72] Nyamande and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4319.
[73] Marron-Fanning and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 377.
In two cases decided by me, I came to the same conclusion. In Ahmed I said:
It may be thought, in the wider scheme of things, that driving offences, especially where no-one (fortuitously, to date) has suffered any physical injury, are relatively minor matters and should be given little weight in the process of assessing what constitutes “good character.”
That is emphatically not the view of the Tribunal.[74]
[74] Ahmed and Minister for Immigration and Border Protection [2018] AATA 4458 at [53]-[54].
In Bowdler I explained:
This Tribunal has, in recent decisions, demonstrated an increasing awareness of the disastrous impact on the Australian community of a rising road toll. Road safety is a matter of legitimate concern to all responsible citizens and to this Tribunal.
In assessing claims for citizenship it is not improper, in my view, for the Tribunal to take into account whether or not an applicant for citizenship has, by his past behaviour, demonstrated that he has and may very well continue to act in a fashion which outs at risk the lives and welling of other Australians.[75]
[75] Bowdler and Minister for Immigration and Border Protection [2018] AATA 347 at [53] and [56].
In its SFIC the Respondent notes the extent of the Applicant’s traffic offences and submits that:
“it would be wrong to consider these offences any less serious because they are traffic offences. Driving a motor vehicle in Australia is a privilege. It is regulated precisely because of the all-too-common consequences that can result from the misuse of motor vehicles.”[76]
[76] Respondent’s SFIC at [25].
This is a submission with which the Tribunal agrees entirely for the reasons outlined above.
The Tribunal notes that while Dr Palk’s comprehensive report discusses the aetiology of the Applicant’s acts of violence and states that his “criminal offending seems directly related to his drug addiction and mental health concerns”[77] there is no suggestion that these problems are in any way related to the Applicant’s driving behaviour. Indeed, most of the driving offences took place before the Applicant started to have major addiction and mental health problems. Under direct questioning by the Tribunal, Dr Palk confirmed that the driving offences should not be considered within the framework of the Applicant’s addiction and mental health issues.
[77] Palk Report at [2.7].
The Applicant was pressed on the issue of his driving record and, in response indicated that as far as his driving behaviour was concerned “I was not aware of what I was doing” and that he did not take particular degree of care to adhere to the rules about speeding or driving without a licence. On one occasion he stated that he was “in a hurry” to get somewhere and was speeding even though he had his children in the car.
Given the evidence above, the Tribunal is satisfied that, given an opportunity to return to the community, there is a significant risk that the Applicant will continue to treat the road rules with contempt, that he will drive in excess of the speed limit and that he will constitute a real threat to the safety and security of other members of the community.
Consideration of risk of re-offending
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[78]
[78] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[79]
[79] Ibid.
The conclusion to be drawn from these considerations is that:
·In terms of Primary Consideration 1): Protection of the Australian community and risk of reoffending, bearing in mind that an overall assessment needs to be made (Grima)[80] the Applicant poses a low risk and hence only limited weight should be given to this criterion, albeit weighing against the Applicant.
·In terms of Primary Consideration 2: Family Violence, this must of necessity count against the Applicant and while the Tribunal does not believe that the Applicant poses a future risk of committing such offences, it assigns a moderate degree of weight to this criterion adverse to the Applicant.
[80] Grima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 761.
THE BEST INTERESTS OF MINOR CHILDREN
MD90 (at sub-paragraph 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
The Applicant has four children, three of whom are minors. The eldest daughter AG will attain the age of 18 years in about five months.
The Tribunal has already outlined the nature of the evidence given by AG in both written and oral testimony and it is clear that there would be a major impact upon her should her father be deported. His current circumstances have already impacted upon her schooling which has been interrupted both by her inability to cope with his absence and the need to play a “second parent” role for the other children in the family.[81]
[81] Statutory Declaration of AG dated 11 March 2020, Applicant’s Submissions at FAE2 at 16-17.
Dr Palk in his report suggests that AG “will blame herself if her father is deported”[82](because of the slapping incident) and that this would have significant consequences for her.
[82] Palk Report at [7.15].
In relation to the younger son JM (aged 12 years), there are reports from his schoolteacher that he has been demonstrating unusual and poor behaviour even to the extent of not answering his name during roll call and exhibiting increased “anxiety levels… and this has effected [sic] all areas of his schooling”.[83] It appears, in terms of timing, that these have been related to the absence of his father.
[83] G-documents at 201-203.
There is no specific evidence before the Tribunal in relation to the younger daughter RS although in her letter in evidence she speaks of the impact of her father’s absence on her siblings.[84]
[84] G-documents at 149.
Elsewhere the Tribunal discusses the position of the elder adult son JO but suffice to say in this consideration that there is evidence that when JO is upset and behaving in a dangerous and threatening manner, those threats are often manifest against his younger siblings.
The Applicant has played a significant (albeit time-limited) parental role in the lives of his children and, since the death of his father, there is no other male person in a position to provide such parenting.
Although some of the children have or may have witnessed acts of family violence there is no evidence before the Tribunal of any impact of such upon them other than that already discussed in relation to AG. Apart from the one slap incident there is no reason to believe that the children have ever suffered any physical or emotional trauma as a result of the Applicant’s behaviour.
It is clear that the family would not be able to remove themselves to American Samoa and hence removal of the Applicant would severely limit the ability of his children to maintain contact with him.
The Respondent rightly concedes (in their SFIC at [63]) that this criterion weighs in favour of the Applicant although it argues that it should be given “limited” weight in relation to other criteria.
In terms of Primary Consideration 3: Best Interests of Minor Children, the Tribunal disagrees with the Respondent’s submission and accords this criterion significant weight in favour of the Applicant.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[85] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[85] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[86]
[86] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In terms of Primary Consideration 4: Expectations of the Australian Community, the Tribunal has come to the conclusion that, considering all of the evidence, the weight accorded to this criterion should be limited.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[87]
[87] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[88]
[88] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[89] and more clearly supported by Wigney J in FHHM. [90]
[89] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[90] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[91] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[92]
[91] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[92] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[93]
[93] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[94]
[94] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[95]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[95] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
No questions arise under this criterion and it is not necessary to give it further consideration.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
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 substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The comparator here is not the difference between services or supports available tin Australia as compared with those in American Samoa, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
The Applicant has spent his formative years in American Samoa and there are no cultural or linguistic barriers to his return or reintegration and his is familiar with the cultural mores of the place.

The primary impediments for him would be separation from his family and a lack of any other family support in American Samoa where he has no significant family members remaining.
These are significant impediments and the Tribunal notes that this point is conceded by the Respondent in their SFIC (at [77]-[78]).
The Tribunal assesses that this criterion should count to a significant degree in favour of the Applicant.
Impact on victims
There are two victims who can be immediately identified, being the Applicant’s wife and his daughter AG, although no charges were ever pressed in relation to the latter.[96]
[96] The Respondent in its SFIC at [81] acknowledges AG’s status as a “victim”.
An analogous matter arose in the case of PGDX where the Tribunal had before it evidence of an applicant who had committed a serious sexual assault against his wife who then came forward to the Tribunal to advocate against his removal from Australia and told the Tribunal of her need for the applicant to remain to provide financial support for herself and her child.
Initially the Tribunal upheld the Minister’s decision to revoke the Applicant’s visa but on appeal, the Federal Court (in setting aside the decision) said[97]:
[82]  However, there is nothing in the Tribunal’s reasoning to suggest it understood that Ms K PGDK’s status as a victim had required it to give specific consideration to the impact on her of a decision to revoke PGDK’s visa cancellation ‘where that information is available’.
[83]  That information was available. It was not open to be ignored.
[84]  Contrary to the submissions the Minister advances, I am satisfied that information was effectively ignored by the Tribunal. In particular I am satisfied that the Tribunal was mistaken in its conclusion that all of what Ms K PGDX had stated in her testimony related to “what she perceive[d] to be in the best interests of her minor son Child S.”
[85]  As a mother it would have been surprising if the gravest of the concerns of Ms K PGDX had not related to her child’s wellbeing. But her evidence was not confined to that. She advanced, albeit modestly, her own claims.
[86]  She informed the Tribunal that the impact of permitting PGDX to remain in Australia would be of benefit to her. It would make her life a little bit easier.
[87]  Such humble evidence had to be taken into account pursuant to cl 14.4 of Direction No 79 and its import weighed in the balance of the matters required to be addressed by the Tribunal pursuant to Direction No 79.
[88]  To revert to Rangiah J’s reasoning in Viane cited above at [27] the effect of Ms K PGDX’s evidence was that as PGDX’s ex-wife she had suffered as his victim and now faced being adversely impacted again if the Tribunal made a non-revocation decision.
[89]  Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.
[97] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
The Respondent notes the significance of this decision of the Federal Court but goes on to submit (SFIC at [80]):
The Court's decision in PGDX was recently considered by this Tribunal in JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In that case, Member Bellamy explained that the ratio of PGDX ought to be seen only as requiring that the adverse impact on victims of any cancellation or non-revocation decision must be considered at some point in the Tribunal's reasoning. However, where a cancellation or non-revocation decision might adversely impact a victim, who is also a member of the Applicant's family who is either an Australian citizen or a person with a right to reside in Australia indefinitely, the best interests of that victim are better considered by reference to the Applicant's ties to Australia. There is, as Member Bellamy pointed out, no reason why a victim's interests "should be taken into account twice merely because [they come] within the purview of two Other Considerations".[98]
[98] JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 at [225].
The Tribunal agrees with Member Bellamy that there should be no “double dipping” in relation to consideration of this matter under two separate criteria, but in this instance believes that it is more appropriate to consider this matter as it relates to the Applicant’s wife’s status as a victim.
As set out above, the Applicant’s wife provided strong support for her husband to be allowed to remain in Australia. She provided a number of Statutory Declarations setting out her position and gave compelling oral evidence to the Tribunal. The gravamen of all that was to the effect that her life would be impacted substantially by the removal of the Applicant. He would have to give up her job to look after her children and would suffer financially. She would be deprived of assistance in parenting the children and in any event she was reconciled with the Applicant and wanted him as an important part of her life.
There was also compelling evidence from the Applicant’s daughter AG who may also be taken as having been a victim of the Applicant’s physical abuse on one occasion. Again, her evidence is set out above and there is no doubt that she would suffer significant disadvantage were the Applicant to be removed.
This criterion counts significantly in favour of the Applicant.
Links to the Australian community
Apart from the Applicant’s immediate family in terms of his wife and children, it is important to consider the position of his mother, now widowed. It was her evidence that she relies upon the Applicant for support and that since the death of her husband this has become a more significant factor. The position of an applicant’s mother in circumstances such as these is a matter to be given due and proper consideration and, where appropriate, to weigh in an applicant’s favour.[99]
[99] Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [45]-[46].
The written submissions from other members of the Applicant’s family attest to an impact upon them should he be removed, and the Tribunal accepts that these carry some weight.
Although there are no direct relevant impacts on any Australian business interests, the Applicant has a solid history of productive and gainful employment in Australia, and this establishes a further positive element in terms of the strength and duration of ties to the community.
This criterion accounts in favour of the Applicant to a significant degree.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
In this matter, there is an overwhelming “other” consideration that needs to be taken into account and that is the welfare of the Applicant’s eldest (now adult) son JO.
JO
JO is aged 21 years and is no longer a minor, but he is, by all accounts, a young man facing some severe challenges in his life.
As far back as 2008 it is clear that both of JO’s parents were concerned that he was having difficulties at school and that he was in need of special interventions and support.[100]
[100] G-documents at 142-143.
A report from BetterRehab, an allied health provider states:
“During the initial assessment, Belinda, JO’s mother confirmed the following information: JO has a diagnosis of autism spectrum disorder (ASD) Level 2, attention deficit hyperactivity disorder (ADHD), Intellectual Disability, and Major Depression. As a result of JO’s diagnoses, he has difficultly participated in his activities of daily living due to increased anxiety, and decreased motivation, problem solving skills, and insight. JO also experiences increased difficulties with sensory processing and with regulating emotions, resulting in an increase in suicidal ideations and physically aggressive behaviours. JO has a history of mental health hospital admissions (x4 admissions in 2020) following “melt-downs” where JO has been increasingly suicidal, has attempted suicide, and has been physically aggressive towards property (punching holes in walls) and towards his family, as has reportedly threatened his mother and siblings with a knife and axe. Belinda reported that the onset of JO’s behaviours became increasingly worse following the passing of his grandfather a few years ago, whom he had a very close relationship with.”[101]
[101] Applicant’s Submissions at [86]-[87].
A report from the Child and Adolescent Development Service (dated March 2011) confirms:[102]
“This assessment, in line with previous evaluation bas indicated that JO’s cognitive functioning appear to be in the border line impaired range; however he shows significantly greater problems in regards to his ability to reason with and problem-solve with verbal information than he does with visual data. This is in keeping with his well reported speech and .language problems, and it represents an enormous barrier for his learning in a mainstream classroom. also shows significant executive function problems that are impacting on his capacity to optimally use his cognitive abilities.
JO has received considerable speech therapy intervention; however, his progress has been very slow. His academic performance is well below average, and he is falling further behind with each year. His lack of competency in the classroom appear to be impacting upon his self concept and place him at risk for mental health problems. At school JO’s behaviour appears appropriate; however. at home there are considerable behaviour problems. It is common for children with developmental problems to put in a lot of effort in the classroom which can leave them frustrated, fatigued and emotionally drained. This frequently results in poorly .regulated emotion and behaviour which are often expressed more readily in the home than in other environments.
JO displays many features of both Attention Deficit/Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD); however, it is common for children with other developmental difficulties such as demonstrated by JO (i.e. cognitive deficit, speech and language impairment. Executive dysfunction and learning difficulties) to show similar behaviour due to the considerable environmental demands upon them. JO has significant difficulty carrying out the tasks of daily living. and this is also likely to be contributing to bis emotional and behavioural problems.
It is important that JO develop competency around his school work and daily living skills. Given the severity of his speech/language problems and his Iower cognitive functioning his learning will invariably be much slower than that of hi normally developing peers. Whilst he currently receives speech/language intervention at school the intensity of this may not be sufficient to meet his needs. JO may show greater progress if he is able to access more intensive speech/ language therapy which includes phonological training to support his reading development. He may also benefit from individual small group instruction targeting functional academics and assistance to develop his daily living skills.”
[102] G-documents at 126.
Dr Mike McGill (consultant paediatrician) describes JO as:
“[a] boy who functions as borderline intellectually impaired but also has features of Attention Deficit Disorder, mild Asperger’s syndrome and a sever speech and language problem. He is floundering in mainstream education.”[103]
[103] G-documents at 124.
A similar assessment is reported by Frances O’Coner (psychologist).[104]
[104] Ibid at 134-135.
JO has been assessed for and joined as a participant in the National Disability Insurance Scheme (NDIS). His NDIS Plan was approved on 2March 2021 and provides for some $43,800.00 in core and capacity building supports.[105]
[105] Applicant’s Submissions at AE1.
On 8 March 2022 a Progress Note from the Redcliff-Caboolture Crisis Assessment and Treatment Community Mental Health Service noted, by way of “background” that:
“JO has a diagnosis of ‘adjustment disorder’ secondary diagnosis of ASD and speech and language difficulties. In 2020 it appeared as though his mental health issues and contact with emergency services were increasing and he required hospitalisation on more than one occasion. He has however remained out of the MH system according to CIMHA and collateral information since 2020.”
This report was prepared as a result of contact with the mental health service by JO’s uncle “who reported that JO has become dysregulated and expressed suicidal and homicidal ideation.”[106]
[106] Applicant’s Submissions at FAE7 at 48.
The Applicant has also submitted what he describes as “text messages and photographs from JO in late February 2022 to his mother including suicidal ideation and threats of violence”.[107]
[107] Applicant’s Submissions at FAE8 at 50-85.
It was the Applicant’s evidence that JO was profoundly affected by both the death of his grandfather (26 October 2019) and finding out that his father’s visa was to be cancelled. His reactions were described as him having “lost the plot” which resulted in JO threatening self-harm with a knife; taking an axe to smash up furniture and household appliances, crying and shaking, all of which persisted over a number of days.
Since leaving school it appears that JO has started to gain some greater control over his life, and he reports that he is currently employed at a Direct Chemist outlet in Brisbane where he is participating in an apprenticeship to obtain a Certificate III in Retail.[108]
[108] Statutory Declaration of JO dated 11 March 2022, Applicant’s Submission at FAE3.
The Tribunal has already set out the details of JO’s direct submission to the Tribunal in support of the revocation of his father’s visa cancellation.
There is simply no gainsaying the importance of the Applicant’s presence in JO’s life. He appears to be one of the few people who can help calm and manage his anger outbursts. He is the only person who appears to engage with JO in terms of activities such as coaching him in basketball; taking him fishing and hiking.
There is ample testimony to the fact that JO’s reaction to just the news of his father’s visa cancellation was one of extreme violence and threats of self-harm. Equally, there is evidence to the effect that when JO loses control of his emotions he constitutes a real physical threat to his mother and siblings.
The boy (although legally an adult) clearly needs his father and separation from his father has the real potential to result in catastrophic consequences. Even without the exhortation in Hands[109] to be mindful of the impact of decisions on the lives of individual human beings, no decision-maker should be prepared to exercise a discretion in a way which has the real potential to put people’s lives at risk.
[109] Hands v Minister for Immigration and Border Protection [2018] FCFAC 225 at [3].
Certainly, this Tribunal will not.
In terms of this non-specified “other” consideration, the Tribunal finds it weighs in favour of the Applicant to a significant extent.
CONCLUSION
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria:
·Protection of the Australian community: against the Applicant to a limited degree;
·Family violence: against the Applicant to a moderate degree;
·Best interests of minor children: in favour of the Applicant to a significant degree;
·Expectations of the Australian community: against the Applicant to a limited degree;
·Non-refoulement obligations: not a relevant consideration;
·Extent of impediments if removed: in favour of the Applicant to a significant degree;
·Impact on victims: in favour of the Applicant to a significant degree;
·Links to Australia: in favour of the Applicant to a significant degree; and
·Other, non-specified: in favour of the Applicant to a significant degree.
Were the calculus to be based simply on these criteria as identified in MD90 they would, for the Tribunal result in a decision, very finely balanced in favour of the Applicant and the cancellation of the revocation of his visa.
However, when the Tribunal takes into account an “other” consideration not specified in the Direction, as is open to it to do, namely that of the welfare of the Applicant’s son JO, there can be no doubt left in its mind that the correct and preferrable decision is to revoke the decision to cancel the Applicant’s visa.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 235 (two hundred and thirty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 11 April 2022

Date(s) of hearing: 23 and 24 March 2022

Solicitors for the Applicant: Ms V Lenton, Lenton Migration Law and Consultancy

Solicitors for the Respondent: Mr O Morris, Clayton Utz

Date(s) of hearing:	23 and 24 March 2022
Solicitors for the Applicant:	Ms V Lenton, Lenton Migration Law and Consultancy
Solicitors for the Respondent:	Mr O Morris, Clayton Utz