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

[2021] AATA 701

MVVQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 701 (30 March 2021)

Division:GENERAL DIVISION

File Number:2020/4418           

Re:MVVQ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:30 March 2021

Place:Brisbane

The decision under review is set aside and substituted so that the Tribunal declines to exercise the discretion to refuse the visa applicant’s visa application under section 501(1) of the Migration Act 1958 (Cth).

..........................[SGD].............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – refusal of application for Partner (Provisional) (Class UF) visa under section 501(1) - where the visa applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 79 – voluntary manslaughter in United States of America – no prior of subsequent offending – demonstrated rehabilitation – remote risk of re-offending – spouse and children in Australia – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

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

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

30 March 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant’s partner, “Mr F” is a 58-year-old citizen of Tonga who has never been to Australia. He is married to the Applicant who is also from Tonga, and who has lived in Australia since 2005. They have four children together.

2. On 21 July 2017, the Applicant sponsored Mr F’s application for a Partner (Provisional) (Class UF) visa (“visa”) and Partner (Migrant) (Class BC) visa.[1] On 14 February 2020, a delegate of the Minister (“the Respondent”) issued Mr F with a Notice of Intention to Consider Refusal of the application for the visa under section 501(1) of the Migration Act 1958 (“the Act”).[2] On 12 and 16 March 2020, the Applicant provided further material in support of the application.[3] On 23 June 2020, the Respondent exercised the discretion to refuse to grant the visa under section 501(1) of the Act on the grounds that Mr F did not satisfy the character test.[4] On 21 July 2020, the Applicant sought review of that decision.[5]

   [1] Exhibit G1, Section 501 G-documents, G4, pages 201 to 219.

   [2] Ibid, G2, page 33.

   [3] Ibid, G20, page 297; G21, page 289; G22, page 291.

   [4] Ibid, G2, page 13.

   [5] Ibid, G1, page 3.

3. The hearing of this application proceeded on 25 and 26 February 2021. Mr F gave evidence via video conference with the assistance of an interpreter (by telephone). The Applicant, the Applicant’s aunt (Dr Tuipulolu), and two religious leaders from Mr F’s home town (Bishop Aholelei and Reverend Filifai’esea Lilo) also gave evidence. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

4. The Applicant did not have the assistance of a legal representative or a migration agent in these proceedings. She is under some financial strain. It is apparent that she, or someone on her behalf, put a great deal of effort into obtaining relevant documentary evidence and identifying (and making available) witnesses who could give cogent to assist the Tribunal in its determination of this matter. I am very grateful for those efforts. I am also grateful to the Respondent for its fair and reasonable approach which is particularly important when an Applicant is unrepresented.    

   LEGISLATIVE FRAMEWORK

5. Section 501(1) of the Act provides that:

   “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “

6. There are two issues presently before the Tribunal:

   ·whether the Applicant does not satisfy the Tribunal that Mr F passes the character test; and if so;

   ·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant Mr F a visa should be exercised.

   Does the Applicant Pass the Character Test?

7. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

8. In around 1992, Mr F was sentenced in the United States of America to imprisonment for 10 years. Accordingly, he has a “substantial criminal record” and does not pass the character test.

9. The Tribunal must therefore consider whether to exercise its discretion to refuse to grant the visa.

   Should the Discretion to Refuse the Applicants Visa be Exercised?

10. In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

11. For the purposes of deciding whether or not to exercise the discretion to refuse to grant a non-citizens visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

12. Paragraph 7(1) of the Direction provides that:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    a) must take into account the considerations in … Part B… in order to determine whether a non-citizen will forfeit the privilege of being granted…a visa…[6]

    [6] The Direction, sub-paragraph 7(1)(a).

13. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...a visa Applicant should have no expectation that a visa application will be approved.

14. Part B provides for the decision-maker to take into account “Primary Considerations”[7] and “Other considerations”.[8] The Primary Considerations are set out in paragraph 11(1) of the Direction (contained in Part B) and they are:

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

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian Community.

    [7] The Direction, paragraph 11.

    [8] The Direction, paragraph 12.

15. The Other Considerations are set out in paragraph 12(1) of the Direction (contained in Part B) and they are:

    (a)International non-refoulement obligations;

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

16. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[10]

    [9] [2018] FCA 594.

    [10] Ibid, [23].

    BACKGROUND AND OFFENDING

17. Mr F is a citizen of Tonga who was born in 1963. He grew up in Tonga. In 1988 when he was 25 years old, he and his family moved to the United States of America (“US”).[11]

    [11] Exhibit G1, Section 501 G-documents, G2, page 96.

18. In 1991 or 1992 (it is not clear exactly when), Mr F committed “voluntary manslaughter” and he was sentenced to 10 years imprisonment.[12] Upon release, he was deported to Tonga. There is no evidence before me from the US authorities about the facts and circumstances of the offending. Mr F provided an account in written representations made to the Respondent[13] and in his oral evidence[14]. His account was probed by the lawyer for the Respondent and I asked Mr F some questions about it. Mr F’s account seemed coherent, unrehearsed and not inherently implausible. I accept the following account of what happened based on Mr F’s written and oral evidence:

    [12] Ibid, G2, page 30.

    [13] Exhibit G1, Section 501 G-documents, G2, pages 100  to 102 (Affidavit by Mr F sworn 10 October 2014; Affidavit by Mr F sworn 2 March 2020; Affidavit of Mr F sworn 9 March 2020).

    [14] Transcript, pages 12 to 13.

    ·     Mr F was told by a friend that:

    o   his 17 year old female relativec had been raped; and

    o   the friend told the alleged rapist that the girl he raped was closely related to Mr F. The alleged rapist said he was not worried and that if he saw Mr F he would shoot him;

    ·     Mr F was afraid that the alleged rapist would shoot him. This person was known for being armed and associating with drug dealers;

    ·     Mr F developed anger and hatred towards the alleged rapist;

    ·     not long afterwards, Mr F saw the alleged rapist on a Saturday night around 1.30am (which I take to be the early hours of Sunday morning). Mr F did not have a weapon but his friend who was with him gave him a gun and Mr F shot at the alleged rapist. After being shot, this person went with his friends to a party, and was later taken to hospital and died on the Sunday evening; and

    ·     Mr F does not know where on the victim’s body he shot him. 

19. Mr F said this happened during a time when his life was unstable and highly influenced by friends and his community.[15]

    [15] Exhibit G1 Section 501 G-documents, G2, page 100 (Affidavit by Mr F, sworn in 2014)

20. Mr F was initially charged with murder but he pleaded guilty to, and was convicted of, voluntary manslaughter. There were also some weapons charges, that appear to relate to his possession of the gun, that were dismissed.[16] He served nine years and six months in a US prison. While serving that sentence, he resolved to become a better person. He decided he would go to church, find a wife and settle down, and be a good father.[17] He spent a lot of time reading the Bible, fasting, and asking God for forgiveness and help him to become a better person. Upon release in 1999, he was deported to Tonga.[18] Back in Tonga he followed through on the commitment he made in prison. That included participating in a program for deportees.[19]

    [16] Ibid, G2, pages 26 to 31.

    [17] Ibid, G2, page 96.

    [18] Ibid, G2, page 97.

    [19] Transcript, page 8, lines 5 o 14.

21. In 2000, Mr F got married but the marriage was not successful, and he separated from his wife in 2001.[20] There was a child of the marriage born in 2002 (“Child S”). Mr F said he hardly saw Child S because his ex-wife’s family did not allow it and he respected their decision.[21] Child S now lives in New Zealand and he recently made contact with Mr F. They are now in contact though Facebook and Messenger. 

    [20] Exhibit G1 Section 501 G-documents, G2, page 97.

    [21] Ibid, G2, page 99.

22. After the breakdown of his first marriage, Mr F lived by himself and spent his time attending church, helping people paint their houses (for free) and he did voluntary work for the church and the local community.[22] The free house painting was connected to funerals. He explained that:

    “…people have their funerals, they need to renovate their houses to preparation for their funeral activities, enhancing their home so they needed some painting and so I was there”[23]

    [22] Ibid, G2, page 97.

    [23] Transcript, page 8, lines 30 to 33.

23. In 2004, Mr F met the Applicant. He told her within a week about his criminal history.[24] She and other family members were in the process of applying to live in Australia at the time they met. The Applicant and Mr F formed a relationship and by the time her visa was granted, she was pregnant. She gave birth to their first child, “Child A”, in May 2005 in Australia. The Applicant’s parents initially opposed the relationship. The Applicant, who lived with her parents, would phone Mr F from pay phones whenever she could so they could stay in touch.[25]

    [24] Transcript, page 34, lines 37 to 40.

    [25] Transcript, page 35, lines 25 to 35.

24. Reverend Filifai’esea Lilo gave evidence in this matter. He is the director of the Christian Education Department in the Free Wesleyan Church of Tonga.[26] He runs the Deportation Reconnection Ministry which is a service that helps Tongan citizens who have been deported to re-establish themselves in Tonga. The Reverend explained that the main priority of the program was reconnection to the community and culture. He helps reconnect deportees to the church, support groups and relatives, and he provides counselling. He also helps to find job opportunities.[27] He sees reconnection as an important part of the rehabilitation process. He said there is also a focus on anger management and behavioural change. In his words:

    “…reconnecting the client with those in the community, it’s much …more help for the changing of their characters...those in the community, they help them on every different kind of…aspect”.[28]

    [26] Exhibit G1 Section 501 G-documents, G2, page 126 and Exhibit A5 Statement of Sione T Tau.

    [27] Transcript, page 52, line 37 to page 53, line 13.

    [28] Transcript, page 56, lines 38 to 46.

25. The Reverend said Mr F enrolled in the program upon its inception in March 2005. From then until June 2007, Mr F participated in the program. He was very interested, and he attended every meeting. He was nominated to be the group leader of the Eastern District and he held that role from July 2007 to August 2010, doing voluntary work as a reconnection officer, looking after the other participants of the reconnection program in that region. From December 2010, as part of the program, Mr F opened a small painting business.

26. Mr F described the program as follows:

    “…the intention was to help those that are being deported back to Tonga, first, to be able to survive and not to commit a crime and cause troubles in Tonga;  but in other words, in another way, be able to survive - successfully survive and support themselves and not be involved in any crime or any problems back in Tonga.”[29]

    [29] Transcript, page 17, lines 5 to 10.

27. Mr F volunteered with a similar program for deportees through his church, which he described as:

    “The program that was in the church, is - it involves educating the youth and the - those that been deported, as well as new - those members of the church that are not very strong in the faith. So the program involves educating them; also counselling;  and also help them in all - in a way that they can survive, as well as be helpful to others, with the intention that they should be able - be prepared to be helpful to others.”[30]

    [30] Transcript, page 19, lines 5 to 10.

28. In January 2009, the Applicant travelled back to Tonga with their son, “Child A”. The following month she and Mr F married. Their second child, a son, “Child B”, was born in December 2009. The Applicant and Mr F had another son, “Child C”, in 2011. The Applicant and the children visited Mr F once or twice per year until the children got older. The visits were between six weeks and three months long and they would try to make sure the children were back in Australia before school started.[31] The last time the Applicant was able to bring her three sons to visit Mr F was in late 2014 - early 2015.[32] After that she only visited alone or with her youngest child, a daughter, “Child D”, who was born in August 2016. The most recent visits were in 2019 and then 2020 before the pandemic.[33]

    [31] Transcript, page 20, lines 20 to 30.

    [32] Exhibit G1 Section 501 G-documents, G2, page 82.

    [33] Transcript, page 32.

29. The Applicant and Mr F could not apply for him to come to Australia earlier because they did not have enough money for the application fee and did not understand the rules and regulations with respect to Mr F’s criminal record in the US. The Applicant was told by many people not to disclose Mr F’s criminal record on the basis that it was over 10 years old and the authorities would not find out about it. However, she chose to disclose it.[34]

    [34] G1, pages 10 to 12; transcript, page 41, lines 12 to 15.

30. The Applicant and the children have lived with her parents since coming to Australia. The Applicant and Mr F are in daily contact through messenger, voice calls and video calls. They both described their relationship as strong. The children often join in these calls.

31. The Applicants parents are no longer opposed to Mr F, having changed their minds based on what relatives in Tonga who know him have told them, and what the Applicant’s children have told them about him.[35] In fact they provided a letter[36] supporting the visa application that is very positive about Mr F as a person and family man. 

    [35] Transcript, page 33, line 32 to page 33, line 33. 

    [36] G2, pages 110 to 112.

32. Mr F helps others in his community by painting houses, mowing etc. He plants food for his everyday needs and for his family when they come to Tonga.[37] He sends the Applicant bags of Tongan food (yam, taro, tapioca, fish and other seafood) to support her, their children and her extended family.[38]

    [37] G2, page 94.

    [38] G23, page 317.

33. For several years, Mr F has done voluntary work in his church and wider local community. This is detailed below under Primary Consideration A.

34. One type of voluntary work Mr F does is in the community patrol volunteer service. Mr F said he has volunteered to do that work since the program started, which he thought was around 10 years ago. His duties include making sure the youth of the town adhere to the 10pm curfew and contacting the police about intoxicated people wandering around at night. Since the pandemic, he has helped patrol the sea borders at night.[39] 

    [39] Transcript, page 9, lines 1 to 23; lines 40 to 44.

35. I asked Mr F is he had ever encountered threatening or violent behaviour in that role. He said:

    “Yes Member, many times, on many occasions my life was these threatening incidents but my experience with that kind of life helped me out, you know, to know that I can deal with them talking calmly and trying to make them calm and then when they are calmed down to understand what it is like to be - when people are drunk they lost control and so my experiences helped me out to know how to calm them down and then when they are calm then, you know, they obey, they - you can tell them "Move here, move there, go to somewhere else" they are very obedient then, when they are calm, and so not much of a difficulty there but my experience helped me out with that situation.”[40]

    [40] Transcript, page 10, lines 1 to 10.

1. I asked Mr F how he dealt with school aged children who were out after curfew. He said:

   “… if we see them, if we encounter the students we know that they are students, we will have to talk to them, make sure they understand that it is by law that they cannot do that and also explain to them what will happen if - because we won't come too much to them but the town officer, it is his duty to handle them and of course he will start talking to their parents first, so most of them they would stay like that, the town officer will come and confront their parents about that and also even it would get to the point that the worst would be for them being charged, by law, for breaking - breaching the law in that direction.”[41]

   [41] Ibid, lines 15 to 24.

2. Criminal record checks in the US[42] and Tonga[43] do not reveal any offending by Mr F except for the index offence.

   [42] Exhibit G1, Section 501 G-documents, G2, pages 25 to 31.

   [43]  Ibid, pages 32.

   PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

3. In considering this Primary Consideration A, paragraph 11.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.

4. In determining the weight applicable to Primary Consideration A, paragraph 11.1(1) of the Direction requires decision-makers to give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

   b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The Nature and Seriousness of the Applicant’s Conduct to Date

5. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;

   (e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

   (f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   (g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (h)The cumulative effect of repeated offending;

   (i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

6. Mr F shot and killed a man. Mr F’s conduct, in the circumstances recounted by him, would constitute an offence, either murder or manslaughter, in Australia. It is somewhat mitigating that he believed the victim had raped a relative and was going to shoot him, that he did not come armed and that he acted in the spur of the moment. Still, he committed an extremely serious offence with fatal consequences. The objective seriousness of the offence is reflected in the ten-year head sentence and the nine and a half years of imprisonment that Mr F was required to serve in the US.

7. This is the only offence Mr F has ever committed. Factors (b) to (e) and (g) to (i) of paragraph 11.1.1(1) of the Direction do not apply.  

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

8. Paragraph 11.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. Paragraph 11.1.2(2) provides that decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently, in Australia.

9. In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:

   a)   The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)   The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   (i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

   (ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

   (iii)the duration of intended stay in Australia.

10. Paragraph 11.1.2(4) of the Direction provides a decision-maker should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa. Mr F wishes to stay in Australia and live with his family here on permanent basis. 

    Nature of harm should the Applicant engage in further criminal or other serious conduct

11. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provisions in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases and that there is a low tolerance of any criminal or other serious conduct by visa applicants.

12. The harm to individuals in the Australian community from further offending of the kind committed by Mr F could scarcely be more serious: being shot normally results in serious injury (with likely consequential psychological harm) or death. Other persons, such as family and loved ones, suffer emotionally and psychologically. The impact to the affected individuals and wider community can be enormous. The harm from further offending of this nature is so serious that any real risk of it occurring is unacceptable.  

    Likelihood of engaging in further criminal or other serious conduct

13. Mr F seeks to reside in the Australian community with his wife and children on a permanent basis. Accordingly, the risk that I must consider is the risk that he will ever re-offend. I do not have before me an expert risk assessment. I am therefore guided by the other evidence before me.

14. There are many letters of support before me. One is from a Lord Nuku who, judging from the letter head, is a Member of Parliament in Tonga. He said he knows Mr F very well, that he manages his own private painting business, he has been the head of the town’s community policing post for almost five years, and he has been a member of the town’s community water committee from October 2019. He described Mr F as being of good character and trustworthy.[44]

    [44] Exhibit G1, Section 501 G-documents, G2, pages 114 to 115.

15. Reverend Filifai’esea Lilo (who also gave evidence) provided two letters.[45] He said he considered Mr F to be good and trustworthy. He noted that Mr F had committed his time, skills and talents generously doing voluntary work in his community such as the community police. He said Mr F is the leader of the local community police and in that role,  he is responsible for the security and safety of the community. He explained that the community police came about as part of a project by the Ministry of Police to enhance communal awareness and responsibilities within each town community, and that it had resulted in a decrease in crime rates (robbery and theft) in the country as a whole. Reverend Lilo said Mr F lives a normal life in his hometown, and he has never been involved in any criminal activities or any other problems there.

    [45] Ibid, G2, page 126; A5.

16. A letter from the Crime Prevention Manager in the Central police station[46] confirmed that Mr F is one of the town’s community patrol volunteers and described him as hard-working, reliable and trustworthy.

    [46] Ibid, G2, page 127.

17. There is a letter from the Chief Inspector of the Tonga Police Force[47], written in 2017. The Chief Inspector stated that he had known Mr F for more than five years, that he had been the leader of the community patrol volunteer since April 2014, and he had contributed a lot of his time in the community. He said Mr F served to protect people and property and keep peace in the community. He described Mr F as a hard-working, trustworthy individual.

    [47] Ibid, G23, page 303.

18. There is a letter from the “town officer” from the Applicant’s town[48] who said he has known Mr F for 10 years and is aware of his deportation from the US. He said:

    ·Mr F has helped tremendously around the community, with his most appreciated task being the community patrol. Mr F worked day and night making sure the community was safe, even on one night when it was raining and everybody was in their home staying warm while Mr F was patrolling despite the bad weather;

    ·everyone looks up to Mr F and always feel safe when he is around;

    ·Mr F served on the water board committee, and help fixed the water pipes and other issues concerning water;

    ·the youth in the community see Mr F as their older brother and he has worked with youth to prevent them from doing drugs and alcohol;

    ·Mr F volunteers to paint homes for free especially when families are preparing for a funeral;

    ·Mr F is loving and helpful to the community; and

    ·he has never seen anyone have a problem with Mr F. He is loved and appreciated by everyone in the community.

    [48] Ibid, G2, pages 121 to 122.

19. Bishop Aholelei provided a letter and gave evidence in the hearing. He knew Mr F since when he (Bishop Aholelei) was young, and he has worked with Mr F since 2009. He is a bishop in the Church of Jesus Christ of Latter-Day Saints, which is the Applicant’s church, in the Applicant’s town. Mr F is a member of Bishop Aholelei’s congregation. He served in different positions in the church, including as a counsellor and a clerk assisting to manage the ward budget. He is reliable and will assist anybody who is in need. 

20. A senior member in Mr F’s church said he had known Mr F for 20 years, ever since he returned to Tonga. He is aware of Mr F’s offence in the US. He attested to how much Mr F has changed since 2000. He said he had served in many positions in the church including serving as a counsellor “overlooking in caring for the welfare of more than 100 souls”, and as a clerk for over 10 years which he described as a position of trust because it involved handling monetary contributions from the congregation and writing checks and budgets for the church activities. Mr F had proven to be a trustworthy and honest person and therefore was entrusted with such a duty. He said there had never been any problem in that role and Mr F always exceeded his responsibility whenever given a task. He said Mr F also served as a counsellor to the youth presidency which is in charge of leading the youth through services leadership and activities. He showed great leadership skills leading through example, and he helped the youth become more independent and confident in their everyday dealings.[49]

    [49] Exhibit G1, Section 501 G documents, G2, pages 117 to 118.

21. A cousin and neighbour of Mr F wrote that she had known him since she was a little girl. She and her father picked him up from the airport after he was deported. She said there has been a huge change in his behaviour, he now has a church calling and he is one of the chosen community police. She recalled the Applicant and their daughter visiting Mr F and described him in very positive terms.[50]

    [50] Exhibit G1, Section 501 G documents, G2, pages 124 to 125.

22. The Applicant’s cousin, Dr Tuipulotu, provided a letter and gave evidence in the hearing. She has known the Applicant for 13 years, and she described him as trustworthy, reliable and respectful.

23. It is expected that the family members, long-time friends and those involved in Mr F’s church would speak positively about Mr F. However, what these witnesses attested to was not only Mr F’s good character but activities he had done in his community that tend to demonstrate good character. I give the evidence of these witnesses significant weight.    

24. The Applicant disclosed Mr F’s criminal history in his visa application despite having been told by some people not to do that because the government would not find out. I consider this goes to the Applicant’s and Mr F’s honesty as they were both involved in the application process.    

25. The lawyer for the Respondent queried what lengths Mr F would go to if he perceived that a female relative needed to be protected. However, Mr F’s crime was not so much motivated by a feeling that his female relative needed protection as it was by the crime that (he was told) had already been committed against her and his belief that the perpetrator was going to kill him. The lawyer for the Respondent asked Mr F “if someone was to say that to you again, would you shoot them?” to which he replied:

    “…now I am a married man, I am a father with children, and I have experienced have learned quite a lot.  For now, if I hear that - somebody saying that to me - from how much I have understood the style of life in that direction, I would - I know serving as locally, with the local police, I sort of know how to handle that. I would like to talk to them calmly, and you know, sort it out peacefully. I will not repeat that anymore, because I - I have changed into a new - I have new life now.”[51]

    [51] Transcript, page 15, line 42 to page 16, line 6.

26. Indeed, Mr F gave evidence that in his role as a volunteer in the community patrol he has encountered violent and threatening behaviour and managed to diffuse the situation without incident. He also gave evidence of a change in his attitude since the offence. He said he feels shame, disgrace and disgust at his offending, [52] and he wants to spend the rest of his life with his family and support them as much as he can.[53]

    [52] Exhibit G1, Section 501 G-documents, G2, page 86.

    [53] Ibid, G2, page 86.

27. These are not empty or aspirational words. Mr F has not committed any offences in the 21 years since his release from prison. It is not a case that he has avoided re-offending by keeping his head down and excluding himself from society. Rather, he has thrown himself into his community, working for a living, being an active member of his church, and volunteering in various roles in his church and the wider community. Not only that, Mr F held leadership roles in the reconnection program and the volunteer community police program. The Applicant, in her submissions, said that Mr F’s community had “invested their trust” in Mr F by choosing him to lead the community police. I accept that Mr F’s occupation of that position shows trust from his community.    

28. If he is allowed to live in Australia, Mr F intends to live with his wife and children to whom he is clearly devoted. He described the Applicant as his biggest blessing, referring to her support love, respect, forgiveness, loyalty and responsibility.[54] I consider Mr F’s family, and his devotion to them, as a significant protective factor. 

    [54] Ibid, G2, page 93.

29. I am grateful to the lawyer for the Respondent for exploring certain issues that could have revealed reasons to find a risk of re-offending. Overall having considered the totality of the evidence, I am unable to find any realistic risk that the Applicant will ever offend again.    

    Conclusion: Primary Consideration A

30. Due to the nature and seriousness of Mr F’s historic offending, and the harm from further offending, Primary Consideration A weighs in favour of exercising the discretion to refuse the visa application. However, in circumstances where there is not a realistic risk of re-offending, I allocate only limited weight to this Primary Consideration.  

    PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

31. Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is or is not in the best interests of a child who may be affected by the refusal to grant the visa. Paragraphs 11.2(2) and 11.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether to refuse to grant the visa is being made.

32. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

    ·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     any known views of the child.

33. The Applicant and Mr F have four children living in Australia who are all Australian citizens. They are:

    ·Child A, a son aged 15;

    ·Child B, a son aged 11;

    ·Child C, a son aged nine; and

    ·Child D, a daughter aged four.[55]

    [55] Exhibit G1 Section 501 G-documents, G2, page 40.

34. All four children normally live in Australia with the Applicant and her parents, and they are primarily cared for by the Applicant.

1. Before the pandemic there were regular trips to Tonga, although the three oldest children have not been there since 2015. In a letter dated in 2014,[56] Mr F’s sister wrote that Mr F was happiest when his family visited in December every year. She said he loves his wife and children and often sees them spending time together having fun, playing, going to the beach and attending church. She said Mr F misses his family a lot when they go.

   [56] Ibid, G23, page 336.

2. Mr F regularly sends Tongan food to the Applicant and their children. The Applicant contacts Mr F through video calls or phone calls every day. They share their ideas, plan, make decisions and solve problems. She said Mr F is available any time she calls him. Presently no one in the household is working. The Applicant is in her last year of a Bachelor of Business degree. She sometimes has a long day at university and when she gets home late at night, she finds that her children have not done their homework. She thinks Mr F would make sure they do their homework when she cannot be home.[57] 

   [57] Transcript, page 42, lines 28 to 42.

3. The Applicant said that if Mr F is allowed to come to Australia, the plan is that he will get a job and share the parenting of their children.[58]

   [58] Transcript, page 41, lines 30 to 40.

4. The Applicant estimated that the three eldest children are in contact with Mr F between two and five times per week, and that their daughter speaks with him daily, always insisting on speaking with him when he is on the phone.[59] When asked how Mr F is involved in their children’s lives, the Applicant said:

   “Okay, his time, I think it's the most important things for me, his time, because whenever we want to call him he's available and I'm expecting him to be available (indistinct) time.  And even my daughter, whenever she wants to call him he must, and yes, [Mr F] has been used to it since Messenger and Facebook introduce. Yes, I think the most important things for him to contribute on parenting role to our children is his time…”[60]

   [59] Transcript, page 43, lines 28 to 45.

   [60] Transcript, page 38, lines 26 to 38.

5. The three older children attend private schools because the Applicant considers that the discipline is better there.[61] She was able to afford the fees with the help of her parents when they were both working but her father is now retired and on a disability pension (he suffers from obesity and he takes aspirin for high blood pressure) while her mother is studying.[62] Her parents are now less able to assist her financially and practically.

   [61] Transcript, page 37, lines 5 to 23.

   [62] Transcript, page 37 lines 10 to 13; page 40 lines 35 to 45.

6. The Applicant has four stepsiblings in Australia who she said do not have any obligations towards her and her children. She has contact with them a maximum of five times per year. She has asthma and arthritis on and off. The picture she painted in general was that she struggles to look after all four children as a single parent and that although her parents are of some assistance,[63] it can also be quite stressful for them all under the same roof. If Mr F were in Australia, he would share the duties and responsibilities concerning the care, welfare and development of their children and they would ultimately move into their own place. 

   [63] Transcript, page 42, lines 12 to 26.

7. There is a letter before me from Child C that states that Child C loves Mr F, and that Mr F loves and cares for him. It is apparent that Child C wants Mr F to live with them.[64] There is also a page of verse written by child C about Mr F. [65] The overall message is that Child C feels that there are things missing in his life without his father there with him and he wants Mr F to be with him in real life not only on the phone.

   [64] Exhibit G1, Section 501 G documents, G2, page 204

   [65] Attached to Exhibit A1, Applicant's Statement of Facts, Issues and Contentions.

8. There is a letter from Child B, saying that Child B misses Mr F very much and wants him to come to Australia to help the Applicant and to look after him and his siblings. He said when they were in Tonga, Mr F took care of the children, doing the work, taking them to the beach, and going to the plantation to get food. He described it as “so much fun in Tonga when we were together with our dad”. He said their lives have changed without Mr F. Child B says they talk daily on the phone and see him through video calls he wishes Mr F was here.[66]

   [66] Exhibit G1, Section 501 G documents, G2, page 105.

9. There is a letter from Child A in which he expresses that he wants the Mr F to be allowed to come to Australia.[67]

   [67] Section G1, Section 501 G-documents, G2, page 106.

10. When the children wrote these letters, only Child A knew of Mr F’s offending. The Applicant gave evidence that in the days before the hearing Child B and Child C were told about it. She indicated that they expressed the view that Mr F must have changed since then.[68]

    [68] Transcript, page 39.

11. In her written material, the Applicant suggested that her children could be at increased risk of suicide without Mr F here. She clarified that in the hearing. It was a reference to Child A, who is 15 years old who is sometimes expected to play a parental role to the younger siblings which he finds a stressful.[69] That such a responsibility would sometimes fall on the eldest child in the absence of one parent, and that he would find it difficult, is understandable. I do not accept that Mr F’s absence, or continued absence, increases the risk of any of the children committing suicide because there is no reliable evidence of that, but I am satisfied that it would benefit Child A to be relieved of the pressure to act as a parent when he is a mere teenager, and that Mr F’s presence in the family home would achieve that.  

    [69] Transcript, page 43, lines 1 to 18.

12. The Applicant has always fulfilled the role of primary carer for these children and they appear to be happy and healthy in her care. However, she is now struggling as her parents cannot provide the same level of support that they previously did. Mr F has proven his devotion to his wife and children over a period of more than 15 years. He has fulfilled a parental role in the children’s lives to the extent that he has been able to, and his contribution has been consistently positive. Allowing him to live in Australia – thus uniting this family – would undoubtedly benefit the children to a significant degree. In those circumstances it is very much against the children’s best interests to refuse Mr F’s visa application.      

    Conclusion: Primary Consideration B

13. The best interests of Child A, Child B, Child C and Child D combined weigh heavily against exercising the discretion to refuse the visa application.

    PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

14. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 11.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should refuse a person’s visa if they commit serious crimes. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

15. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[70]

    [70] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

16. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

17. Paragraph 6.2(1) of the Direction states that:

    “The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

18. Those principles, set out in paragraph 6.3 of the Direction, are:

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

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.

    Analysis – Allocation of Weight to this Primary Consideration C

19. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

    ·Mr F’s only offence is very old, having been committed some 30 years ago;

    ·it was an extremely serious offence, committed in circumstances where Mr F thought the victim had raped a young relative and intended to kill him. Even so, any real risk of re-offending in that way is unacceptable;

    ·Mr F has expressed remorse and he has not committed any offences in the 21 years since his release from prison;

    ·I am unable to find a realistic risk that Mr F will re-offend;

    ·Mr F has strong record of service in his local community in Tonga. While he was not asked about this, it is reasonable to infer that he would contribute to his local community in Australia if given the opportunity to live here;

    ·Mr F has a strong work ethic and he has some skills (e.g. painting, security patrol, and bookkeeping) that could assist him to secure employment in Australia;

    ·Mr F is a devoted, engaged father to four children who are Australian citizens; and

    ·if Mr F is not permitted to live in Australia, it will adversely affect his wife and children who are all Australian citizens.

    Conclusion: Primary Consideration C

20. The Australian community expects that non-citizens who commit serious crimes in Australia or elsewhere, as Mr F did, should be refused entry. However, in this case, there are some strong factors that are favourable to Mr F such that I consider this Primary Consideration to be neutral.

    OTHER CONSIDERATIONS

21. It is necessary to look at the Other Considerations listed at paragraph 12 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    (a) International non-refoulement obligations

22. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant. 

    (b) Impact on family members

23. I have already allocated weight under Primary Consideration B with respect to the impact of an adverse decision on Mr F’s children who are all Australian citizens. The only other immediate family member of Mr F who would be impacted to a significant degree by such a decision is the Applicant. I am in no doubt that the Applicant loves Mr F. She has remained devoted to him for over 15 years in, at times, very trying circumstances. They speak with each other every day. I am satisfied that being physically separated from her husband causes the Applicant significant emotional hardship, and that it pains her that her children do not have their father in the family home. I am further satisfied that Mr F’s absence causes the Applicant financial hardship and that she bears most of the parenting load.      

24. This Other Consideration weighs heavily against exercising the power to refuse the visa application.

    (c) Impact on victims

25. This Other Consideration (c) requires a decision-maker to assess the impact that the refusal to exercise the power to grant the visa would have on members of the Australian community including any of the Applicant’s victim(s) and the family members of the victim(s). There are no known victims of Mr F’s offence in the Australian community. This Other Consideration is therefore not relevant.

    (d) Impact on Australian business interests

26. The Applicant does not claim that the refusal to exercise the power to grant the visa would significantly compromise the delivery of a major project or delivery of an important service in Australia. This consideration is not relevant to the determination of this application.

    Findings: Other Considerations

27. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)International non-refoulement obligations; not relevant;

    (b)Impact on family members; weighs heavily against exercising the discretion to refuse the visa application;

    (c)Impact on victims; not relevant;

    (d)Impact on Australian business interests: not relevant.

    CONCLUSION

28. I am now required to weigh all of the Considerations in accordance with the Direction. 

29. In considering whether the discretion to refuse the Applicants visa should be exercised I find as follows:

    ·Primary Consideration A weighs to a limited extent in favour of visa refusal.

    ·Primary Consideration B weighs heavily against visa refusal.

    ·Primary Consideration C is neutral.

    ·Other Consideration (b) weighs heavily against visa refusal.

30. Mr F committed an extremely serious crime which would give any fair-minded person great cause for concern about allowing him to enter the Australian community. However, one of the primary goals of imprisonment is the rehabilitation of offenders, including serious offenders, and in the case of Mr F, the criminal justice system achieved that goal. Not only has Mr F led a law abiding life in the 21 years since his release from prison, he has contributed to the safety of his local community for over 10 years, assisted in the reconnection and rehabilitation of other offenders, done extensive voluntary work in his church and the wider community, and been a loving husband and father to the extent that he is able for 15 years. Based on the material I have before me; I cannot find a realistic risk that Mr F will re-offend. There are members of the Australian community (who are Australian citizens), namely Mr F’s wife and their four children, whose lives would be markedly better if he were here with them. Mr F has skills that are relevant to gainful employment and the will to work for a living and raise his children. Weighing the Primary Considerations and Other Considerations, I decline to exercise the discretion to refuse the visa application under section 501(1) of the Act.

    DECISION

31. The decision under review is set aside and substituted so that the Tribunal declines to exercise the discretion to refuse the visa applicant’s visa application under section 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

...........................[SGD].............................................

Associate

Dated: 30 March 2021

Date(s) of hearing:

25 and 26 February 2021

Applicant:

By videoconference

Solicitors for the Respondent:

Ms Lauren Hargrave

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G23 pages 1 to 356)	R	-	3 NOV 2020
A1	Applicant’s Statement of Facts Issues and Contentions including attachments.	A	1 DEC 2020	2 DEC 2020
A2	Applicant’s Reply Submissions	A	27 JAN 2021	28 JAN 2021
A3	Statement of the Applicant	A	-	21 JULY 2020
A4	Letter of Sione T Tau	A	10 JULY 2020	21 JULY 2020
A5	Statement of Reverend Filifai’esea Lilo	A	23 FEB 2021	23 Feb 2021
A6	Applicant’s Centrelink Income Statement	A	23 FEB 2021	23 FEB 2021
A7	Applicant’s Supporting Documents including: ·     Applicant’s Proof of Enrolment Statement 2021 Western Sydney University (Bachelor of Business) ·     Statement of Pastor Sitiveni Fine Teaupa dated 22 February 2021 ·     Australian Higher Education Graduation Statement (Bachelor of Policing) for the Applicant’s mother dated 29 April 2020 ·     Certificate of Current Enrolment 2021– University of Sydney (Graduate Diploma in Criminology) for the Applicant’s mother ·     University of Sydney student card for Applicant’s mother ·     Centrelink Income Statements for the Applicant’s parents dated 5 February 2021 ·     Disability parking permit and Mobility parking scheme card for the Applicants’ mother	A	-	23 FEB 2021
A8	Applicants further supporting documents including ·     Centrelink Income statement of the Applicant dated 24 February 2021 ·     Photographs	A	-	24 JAN 2021
R1	Respondent’s Statement of Facts Issues and Contentions	R	14 JAN 2021	14 JAN 2021