Nasilasila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 43

Nasilasila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 43 (17 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8068
Re:Solomoni NASILASILA
APPLICANT

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

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:17 January 2022
Place:Sydney

The reviewable decision is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), as there is another reason why it should be revoked.
...............................[SGD].........................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – domestic violence committed by the Applicant – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501(3A)
CASES
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
Djalic v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 15
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAC 202
Leha v Minister for Immigration [2000] AATA 1054
MBMZ v Minister for Immigration and Border Protection [2014] 220 FCR 1
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Migration Act 1958 – Direction No. 90 – direction under s 499 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
17 January 2022

The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 25 October 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act to cancel the Applicant’s Resident Return (Class BB) (subclass 155) Visa (“the visa”).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” under section 501(7)(c) of the act as a result of being sentenced to a term of imprisonment for 12 months or more. The Applicant’s visa was cancelled on 23 March 2021 under Section 501(3A)(a)(i) of the Act.
The Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act.
On 10 April 2021 the Applicant made representations to have the cancellation of his Visa revoked pursuant to section 501CA of the act. On 25 October 2021 a delegate of the Minister decided not to exercise the power under section 501CA(4) to revoke the cancellation made under section 501(3A). Accordingly, by application filed on 28 October 2021 the Applicant applied to the Tribunal for review of the decision. The hearing before the Tribunal was held on 5 and 6 January 2022 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to section 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(e)international non-refoulement obligations;
(f)extent of impediments if removed;
(g)impact on victims; and
(h)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 46 years of age, was born in Fiji. The Applicant is a citizen of Fiji.
EVIDENCE
Statements
The Tribunal has had regard to the various statements in support of the Applicant before it. These statements include those from two of the Applicant’s sisters, one who resides in the United States of America and one who resides in Australia, and his eldest son, referred to as (T) below. For reasons of confidentiality, the names of those who have provided statements or references are not reproduced in this decision.
Oral Evidence
The Tribunal heard oral evidence from the Applicant, and from the Applicant’s sister and adult son.
Testimony of Applicant
The Applicant provided oral testimony to the Tribunal, and the written claims of the Applicant must be compared with the facts which were adduced during the hearing.
APPLICANT’S VISA HISTORY
The Applicant first visited Australia on 25 April 1987 when he was 12 years of age. He again visited Australia in 1995 for five months, and subsequently returned as the holder of a Sports (Class TE) (subclass 421) Visa. Thereafter the Applicant was granted a Spouse (Class BC) (subclass 100) visa and later a Resident Return (Class BB) (subclass 155) Visa. Since 1994 the Applicant has left Australia on three occasions, the longest being for a period of two months.
APPLICANT’S CRIMINAL HISTORY
The schedule which follows shows details of the offences for which the Applicant has served a custodial sentence:

Crime	Sentence	Imprisonment	Parole
H 22212527 H 22623585	4 months (including called up): 30.03.2008 – 29.07.2008	30.03-2008 – 29.07.2008 (1 months)	No parole
H 27649522: Take & Drive conveyance	8 months (non-parole 6 months): 19.04.2008 – 18.10.2008/18.12.2009	19.04.2008 – 18.10.2008 (6 months)	Paroled 18.10.2008 (G10, 57)
H 31696747: Take and Drive conveyance	8 months (non-parole 6 months): 19.04.2008 – 18.10.2008/18.12.2009
H 33430476: Drive high range PCA	8 months (non-parole 6 months): 19.04.2008 – 18.10.2008/18.12.2009
H 31696747: Goods in personal custody suspected being stolen	19.04.2008 – 18.10.2008 (6 months)
H 31696747: Drive while disqualified	19.04.2008 – 18.10.2008 (6 months)
H 27732227: Drive while disqualified	19.04.2008 – 18.10.2008 (6 months)
H 33430476: Drive while disqualified	19.04.2008 – 18.10.2008 (6 months)
H 33430476: Take & Drive conveyance	19.04.2008 – 18.10.2008 (6 months)
H 37864326: Take & Drive conveyance	6 months: 19.06.2009 – 18.12.2009	20.06.2009 – 18.12.2009 (6 months)	No parole (G10, 56)
H 37864326 – Drive while disqualified from holding a licence	12 months: 19.06.2010 – 18.06.2011 6 months non-parole: 19.06.2009 – 18.12.2009
H 40541710 – Drive while disqualified	12 months: 14.06.2010-13.06.2011 non parole: 14.06.2010 – 13.12.2010	15.06.2010 – 13.12.2010 (6 months)	Paroled 13.12.2010 (G10, 56)
H 55415844: Possess prohibited drug	Imprisonment 1 year 6 month: 10.02.2014 – 09.08.2015 Non-parole: 10.02.2014 – 09.11.2014	10.02.2014 – 09.11.2014 (9 months)	Paroled 09.11.2014 (G10, 56)
H 50542140: Drive while disqualified from holding a licence		10.02.2014 – 09.11.2014 (9 months)	Paroled 09.11.2014 (G10, 56)
H 74442263: Drive motor vehicle during disqualification period H 76875653: Drive motor vehicle during disqualification period	Imprisonment:13.01.2021 – 12.02.2021	13.01.2021 – 12.02.2021 (1 Month)	No parole
H 148964101: possess prohibited drug	Imprisonment: 13.02.2021 – 12.04.2021	13.02.2021 – 12.04.2021 (2 months)	No parole

Traffic offences:
(a) driving with PCA:

The Applicant has had convictions for driving with a prescribed concentration of alcohol (PCA) on five occasions, the most recent being a conviction on 6 August 2008 when he drove with a high range;
(b) driving while disqualified:
The Applicant was convicted of driving whilst disqualified from holding a licence on the following dates:
·6 August 2008 in Liverpool Local Court;
·2 September 2009 In Manly Local Court
·5 November 2010 in Central Local Court
·9 October 2013 in Parramatta Drug Court
·6 September 2014 In Parramatta Local Court
·26 September 2014 in Parramatta Drug Court
·12 February 2021 in Liverpool Local Court
(c) other traffic offences:
The Applicant was also convicted of the following other traffic offences on the noted dates:
·28 April 1998 in Burwood Local Court:
odriving without a licence; and
odriver stating false name;
·21 December 2004 in Waverley Local Court:
onot comply with P1 licence;
onot making ticket available in restricted area;
ofailure to comply with licence condition;
·1 June 2005 in Liverpool Local Court:
ostating false name or address; and
orefusing to produce licence / not comply with P1 licence;
otake and drive conveyance without consent of owner;
·4 August 2005 in Campbelltown District Court:
otake and drive conveyance without consent of owner;
·28 March 2006 in the Central Local Court:
olicence expired less than two years before – first offence;
onot reverse vehicle safely;
onot give particulars to other driver;
ouse unregistered registrable class A motor vehicle;
oclass A vehicle displaying misleading registration label;
ousing uninsured motor vehicle;
·9 October 2006 in Campbelltown District Court:
otake and drive conveyance without consent of owner;
·14 November 2006 in Kogarah Local Court:
oseatbelt not adjusted/fastened;
·1 August 2008 in Campbelltown District Court:
otake and drive conveyance without consent of owner;
·6 August 2008 in Liverpool Local Court:
oexceeding the speed limit;
odriving conveyance without consent of owner;
·8 September 2008 in Liverpool Local Court:
otake and drive conveyance without consent of owner;
·19 September 2008 in Liverpool Local Court:
otake and drive conveyance without consent of owner;
·27th of August 2009 in Manly Local Court:
otake and drive conveyance without consent of owner;
·2 September 2009 in Manly Local Court:
odriver/rider stating false name/address;
otake and drive conveyance without consent of owner;
·19 February 2013 in Waverley Local Court:
odid not stop at stop line;
·12 February 2021 in Liverpool Local Court:
onot turn right from multilane road from right lane.
Other offences
The Applicant has been convicted of the following other offences on the provided dates:
·having goods in personal custody suspected of being stolen on 6 August 2008;
·receiving stolen property: steal property in dwelling house on 6 August 2008;
·possess prohibited drug on 8 September 2014; 9 September 2014; 26 September 2014; 12 February 2021; 3 March 2021; and 29th July 2021;
·common assault on 6 November 2003;
·arrest warrants issued on 8 October 2006;
·failing to appear in accordance with bail undertaking on 8 September 2008;
·warrant executed for breach of drug order on 6 September 2014.
Habitual Offender
The Applicant has at various times in the past been declared a habitual offender. The Applicant’s first declaration that they were a habitual offender was quashed at the Campbelltown District Court in 2005, however he was again considered a habitual offender and disqualified from driving for an extensive period which ended five years after 2020 in August 2008, and was further disqualified for five years from 2025 in September 2009. Finally, on 8 December 2010 in the Sydney District Court the Applicant was again declared a habitual offender and disqualified for five years from 6 August 2030.
Breach of Bail Conditions
The Applicant breached his Community Service Orders by failing to attend his community service on seven occasions without reasonable excuse in the period 1 October 2005 to 4 February 2006 despite being afforded three community service assignments during the same period. He also failed to maintain attendance in the Sober Driving Program as directed. As a result, an application was made for the revocation of the community service order under section 115(2)(a) of the Crimes (Administration of Sentences) Act 1999 (NSW).
Breach of Parole
A report dated 9 August 2010 by the Community Compliance Group of Corrective Services NSW records that on 6 June 2010 the Applicant breached a parole order by driving whilst disqualified.
On 13 August 2010 the Applicant appeared in the Central Local Court on a charge of driving whilst disqualified and received a sentence of 12 months with a non-parole period of nine months. The Applicant was assessed as being unsuitable for a Home Detention Order for the following reasons: –
·Uncertainty surrounding his current illicit drug use whilst in custody given that urine analysis test results are inconclusive and unable to confirm whether the offender has been able to abstain from alcohol and other drug use;
·The offender’s involvement in an incident of a violent nature whilst in custody on 17 July 2010. This incident has resulted in an internal charge of assault made against him.
A further breach of parole occurred when, contrary to a Parole Order dated 8 December 2010 which required the Applicant to reside at a nominated address, on 15 December 2010 the Applicant no longer resided at such address. The recommendation states:
it is of concern that Mr Nasilasila appears to have attempted to mislead this service. That regarding his domestic and accommodation are circumstances and that the parolee was evicted from his approved residence shortly after release, which resulted in his relocation to a residence that has yet to be approved by the service.
A further breach of a parole order made on 26 September 2014 occurred when a urine analysis on 15 May 2015 recorded that the Applicant had used prohibited drugs, obtained drugs unlawfully or abused drugs lawfully obtained.

Following the analysis the offender denied any drug use and was directed to return to the office in two hours time to undergo a urine analysis and was advised that failure to do so will be treated as a positive urine analysis result. Mr Nasilasa failed to return on that date to undergo urine analysis and telephone contact was unable to be established with him.
Violent Crimes
The Applicant has one conviction for assault, and an internal charge of assault made against him whilst in custody. The only conviction for assault was against a former partner, however it was not formally considered a domestic violence offence.
Sentencing Observations
2005
The earliest available sentencing remarks were those given by Judge Sides in the District Court of New South Wales Criminal Jurisdiction at Campbelltown on 9 October 2006. Such proceedings were an appeal to the court to review a community service order that was made on 4 August 2005 following an appeal to the District Court Criminal Jurisdiction aiming to reduce the sentences of six months of imprisonment to 50 hours community service for a mid-range PCA committed on 13 November 2004 and take and drive a conveyance on 21 May in the same year. Judge Sides said:
“The mid-range PCA is his fifth similar offence over a relatively short period of time. The evidence discloses, so far as his attitude to the community service order itself and other orders of the court requiring him to appear, a continuing disobedience to the law. The court sees no option but to revoke the orders and to impose a custodial sentence in connection with each of them.”
The Applicant had also accumulated a substantial number of fines for which charges were laid against him on 28 December 2005. The offences which had accumulated by way of fines included using an uninsured motor vehicle; displaying misleading registration label; using an unregistered vehicle; not give particulars of driver; unlicensed driving; and not reverse safely.
2010
Before the District Court of New South Wales, Criminal Jurisdiction on 8 December 2010 the Applicant appeared before Judge Solomon. The Applicant had appealed against a sentence imposed by a magistrate at the Central Local Court on 5 November 2010 arising out of the Applicant driving a motor vehicle on 14 June 2010. The appeal was dismissed and the convictions were confirmed but an adjustment was made to the non-parole period. However his Honour Judge Solomon said:
“So this is the last time you receive any leniency, very last time.”
2014
On 26 September 2014 the Applicant came before Judge Barnett in the Drug Court of New South Wales at Parramatta. The Applicant came before the court for final sentence following a sentence imposed on 9 October 2013. His honour noted that the Applicant had been placed on a Drug Court Program which was abandoned by the Applicant and the program was terminated on 11 June 2014. The Applicant initially had been sentenced for driving while disqualified and for both that matter and other traffic matters he received a sentence totalling 18 months imprisonment which was suspended to allow the Applicant to undertake his Drug Court Program.
However, a new charge arose when the Applicant was found to have a small amount of cannabis in his possession. The Applicant, according to the sentencing remarks, followed the program initially, but then left the jurisdiction without permission; abandoned his program and travelled to Queensland, allegedly because his mother was ill. The record suggests that the information about a funeral in Queensland which is provided to the court by the Applicant was not correct. Further, the Applicant failed to attend for testing on numerous occasions; and was noted to have an “appalling” traffic record, including disqualification of driving until 2035. His Honour imposed an aggregate sentence of 18 months from 10 February 2014 with a non-parole period of nine months.
2021
On Friday, 12 February 2021 the Applicant appeared before Magistrate Abdul-Karim In the Liverpool Local Court, when the Applicant was charged in connection with having an unauthorised pistol in his possession and cannabis in his possession. The Applicant pleaded guilty. His Honour noted that whilst there had been a gap in his offending, the Applicant had continued to incur driving offences, namely driving while disqualified, having cannabis in his possession, and having a pistol in his possession. As detailed hereunder, the magistrate accepted the Applicant’s application in connection with the pistol charge. The Magistrate placed the Applicant on two Community Corrections orders, one being for a period of six months, and the other for a period of 18 months which required the Applicant to accept supervision and to report to Community Corrections at Liverpool within seven days of release from custody.
PRIMARY CONSIDERATION A: RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT REOFFEND OR ENGAGE IN OTHER SERIOUS CONDUCT
Nature and Seriousness of the Conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The Applicant has been convicted of more than 50 offences. The majority of the offences are related to driving or use of a motor vehicle. Between 1998 and 2021 the Applicant has been convicted of driving without a license, providing a false name, mid-range PCA (repeated offences), failure to comply with license condition: use unregistered motor vehicle, and speeding. The charges also record having goods in personal custody suspected of being stolen (repeated charges); stealing property; taking another vehicle without permission; and possessing prohibited drugs (repeated offences) and most recently having an unauthorised pistol in his possession, although the last charge is explained hereunder.
The Tribunal notes significant matters relevant to the consideration of the protection of the Australian community:
(i)The Applicant has been convicted of numerous offences. Whilst most of the offences relate to the use of a motor vehicle, included are drug offences, and more recently, the offences have included possession of an unauthorised pistol. A Community Offender Services Probation and Parole Service Presentence Report dated 9 July 2008 records that the Applicant consumed alcohol heavily. The Applicant denied to the investigating officer that he used illicit drugs and reported no history of illicit drug use.
(j)A Probation and Parole Service report to the state Parole Authority relating to a breach of parole in 2010 records of the Applicant that they were assessed to be “at medium to low risk of reoffending”.
(k)Another report dated 20 December 2010 records that, during an investigation concerning a breach of parole, the Applicant had removed themselves from their residence and provided no other address. The recommendations states:
“It is of concern that [the Applicant] appears to have attempted to mislead this service. That regarding his domestic and accommodation circumstances, and that the parolee was evicted from his approved residence shortly after release, which resulted in his relocation to a residence that has yet to be approved by this Service.” [26]
(l)A Breach of Parole Report dated 26 May 2015 refers to the fact that the Applicant had resumed illicit drug use; that he was required to complete the traffic offender intervention program but that he had failed to enrol.
(m)A sentence Assessment Report dated 22 September 2020 records that the Applicant had reflected upon his offending; that he was able to identify the impact of his offending on his family and the wider community. The report also states:
“He revealed that his awareness of the seriousness of his actions as also resulted from his encounter with a person who had lost his children as result of the driving offences of others.
He added his disregard for not only his driving related obligation but also the aforementioned incident “hit home” as “I didn’t realise the seriousness of driving”
This report is also referred to the fact that the Applicant had failed to attend his appointment on 24 November 2020 with Community Corrections.
(n)The Applicant has a history of offending for more than 20 years. Many of the offences are of a minor nature. However there are incidents, culminating in the 2021 conviction for possessing an unauthorised pistol, which indicate that the Applicant continued to offend at a consistent level apart from the multi-year gap in offences committed.
Prior Warnings
The applicant has asserted to the respondent that he received no prior warning that his visa might be cancelled. The fact is that a Formal Counselling Letter was forwarded by registered mail to the applicant dated 19 October 2009. Such letter specifically stated:
At present, no consideration is being given to cancelling your Visa under section 501 of the act. Your Visa therefore continues to provide you with authority to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes in the scope of subsection 501 (6), could result in consideration of the cancellation of your Visa. The consequences of Visa cancellation under section 501 of the act include removal of the former Visa holder from Australia and, in certain cases bars on re-entering Australia.
Accordingly, the Applicant’s statement contained in his Request for Revocation Of a Mandatory Visa Cancellation in answer to the question whether he had previously received a warning from the Department or Minister that: “I haven’t (received a warning from the Department or minister] this is my first time to get a warning”, is implausible.
But there are other warnings from which can be inferred that the Applicant knew that his Visa status was at risk. By registered letter dated 8 August 2011 the Department provided a Notice of Intention to Consider Cancellation of your Visa Under Subsection 501 (2) of the Migration Act 1958. The notice invited the Applicant to reply. In view of representations apparently made, a further registered letter was sent to the Applicant dated 16 August 2012 being a Notice of Decision not to Cancel Visa under Section 501 of the Migration Act 1958. Despite such warning, the Applicant engaged in criminal conduct resulting in two criminal convictions in 2013; two convictions in 2014 and further convictions in 2020.
But there is additional evidence which satisfies the Tribunal that the Applicant was well aware of his precarious Visa status. During the hearing, evidence was adduced by telephone from the Applicant’s sister. In her evidence she was certain that the applicant had mentioned to her the fact that the Applicant was concerned about his Visa status.
Untruthful Statements to Authorities
The Movement History maintained by the Department of Home Affairs recorded the applicant’s movements in and out of Australia. On two occasions, the applicant wrongly stated on arrival cards that he had not had any criminal convictions. When entering the country on a date which appears to be 21 September 2003 (the document is obscure) in answer to the question “Do you have any criminal convictions?” the applicant indicated “no”.
On an arrival card dated 4 February 2018 the applicant gave the same wrong response to such question.
In respect of each matter, the applicant provided the Department with emails in purported explanation. The applicant stated in his response sent by email on 11 October 2021 that he was not “really good at reading or writing in English”. In another email dated 9 October 2021 the applicant referred to the fact that he had made an honest mistake.
In contrast to the explanation he provided in his emails, in his oral evidence the Applicant volunteered two excuses which did not appear in his correspondence with the Department, namely that he believed that convictions were referring to convictions in Fiji; and secondly that on each occasion the card was filled out by another passenger. The applicant also denied that the signature on each card was his. The following question and answer is recorded on the transcript as follows:
who wrote it?
I just looked at it then.
Who wrote your signature?
Actually I think it was the passenger next to me, and I signed the bottom
do you mean to say a total stranger wrote your signature like that?
Yes, he was asked me questions and I was answering.
What, you suddenly now recollect, do you, that there was another person who is involved?
Yes, your honour, I just – because I just saw that handwriting in, it’s not mine, so I’m sorry about that, your honour
well then how come your two emails and even suggest that Mr Nasilasila?
I’m sorry, your honour, I just – I just took ownership of it because it was my passenger card. I don’t want to blame anyone else.
The Applicant’s evidence on this issue was evasive, vague and in the circumstances, the Tribunal does not accept the explanation. A comparison of the signatures on the incoming passenger cards matches identically the signature on the Applicant’s Request or Revocation.
Untruthful Evidence to Court
In the sentencing remarks on 26 September 2014, Judge Barnett in the Drug Court of New South Wales addressed the fact that the applicant had breached his parole and the fact that the applicant had abandoned the drug Court That program. In the sentencing remarks he states
“He [the Applicant] went to Queensland and it tells the court that his mother was very ill and we have heard in his evidence that she eventually died and the funeral was in Fiji but says he did not go to Fiji”
The evidence provided to this Tribunal establishes that the Applicant’s mother did not pass away until 2019. His Honour must have been aware that the evidence given by the Applicant to the Drug Court was false as his Honour later remarked:
But he [the applicant] talks about a funeral in Queensland which is clearly not what happened but that was the message the Court got.
It appears that the Applicant provided a false excuse to the Drug Court for his inability to attend court.
Untruthful Statement
Whilst in detention the Applicant consulted the International Health and Medical Services. He provided a statement as follows:
THC since 28yo, recreation, last smoked two months ago.
Denies any other substance use.
In fact the evidence satisfies the Tribunal that the Applicant has consumed marijuana, ecstasy, and methamphetamine.
The Risk to the Australian Community Should the Non-Citizen Commit Further Offences or Engage in Other Serious Conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. This paragraph directs the decision maker to consider the nature of the harm to individuals or the community should the Applicant reoffend, as well as the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Tribunal is required to consider the future risks when determining the application before it: the Minister cannot regard visa cancellation or deportation as a form of punishment for past events: see Djalic v Minister for Immigration, Multicultural andIndigenous Affairs [2004] FCAFC 15 at [58]. The rationale for such a principle rests on the basis that the Applicant has been punished already for the crimes committed.
In MBMZ v Minister for Immigration and Border Protection [2014] 220 FCR 1 at [192], Buchanan J said:
“… The discretion to be exercised under section 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.”
The Applicant, as discussed above, has an extensive history of offending. The nature and seriousness of these offences indicates that the effect on the Australian community should the Applicant reoffend at a similar level of severity would amount to a chance of physical harm as a result of his driving while disqualified or illicit drug use. While undoubtedly these offences are concerning, one could not consider the impact on individuals or the community as serious as it would be for a consistently violent offender.
As for the likelihood of the Applicant reoffending, the Tribunal would consider that the Applicant has a high risk of reoffending. While the Applicant provided assurances in the hearing that he had realised there was a real chance of being separated from his children, and this would prevent him from offending further, it should be noted that the Applicant has made similar assurances to not reoffend in the courts on previous occasions. The Applicant has started, but not completed, some rehabilitation courses while in detention. The evidence given by the Applicant suggests that the courses could not be completed as he had been moved between detention centres. It should be noted that the Applicant managed to have an extended period of some years where they ceased offending, and the resumption of offending appears to coincide with the breakdown of the Applicant’s relationship with the mother of his young children.
Finding on Primary Consideration A
Given the nature and seriousness of the conduct discussed above, and the Applicant’s high likelihood of reoffending, the Tribunal finds that this consideration weighs strongly against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "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".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness. (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of 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 (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favor (sub-paragraph 8.1.2(3)(d)).
e)The applicant has not been convicted of any offence involving family violence
A NSW Police report entitled Domestic Violence – No Offence – No offence detected made on sixth of May 2015 records, relevantly:
the VIC states she has been in a relationship with POI for about six years. A year into the relationship the POI took the VIC to live in Queensland. The VIC states that while in QLD the POI was extremely controlling, prevented her from forming friendships or having access to finances, was afraid of him due to his drug use and that she was broke due to his spending all their money on his drug dependency… She did not believe she was in immediate risk… She did not want an AVO… She also stated that the POI had never been violent towards her. No further police action.

A further report 1 November 2019 records that the partner of the applicant attended at a police station in Young, NSW. It relevantly states:
since the victim left the POI in October 2019, the victim has moved from Queensland to Sydney and has been followed by the POI. Throughout the course of their relationship the victim states she has been threatened in the past as the POI has threatened to kill her if she left the relationship. The victim stated since the time they had been together, the POI was a compulsive liar, illicit drug use and thief.
The VIC left the POI and return to New South Wales live with family on 24 October 2019 bringing the three children with her. The PIC and the children are currently staying at her sister’s house in [nominated address]. About 1435 on Monday, 4 November 2019 the VIC attended Young Police Station to apply for an AVO against the POI as he has told her via text messages that he is going to cut her off financially which includes not paying for her car loan and removing himself from the house lease. The VIC did not disclose any domestic violence incidents and was only concerned about the POI taking her car away please told the VIC to seize [sic – cease] all contact with the POI and to contact a solicitor ASAP who will help with the recovery of property and any other civil matters that may arise. Due to no domestic violence offences being disclosed, police That did not apply for an AVO as is no fears for her safety as a POI made no threats towards her.
It should be noted that the Applicant’s partner made the following observation:
she observed that the POI had an unregistered pistol in his possession, unknown if he still has the firearm in her (sic – his) possession. Firearm describes a black semi automatic pistol, magazine unknown if loaded. Fears held by victim: the victim holds concerns that she doesn’t want to get back with POI as their relationship has been toxic in the past due to the victim’s drug habits. The victim fears of the POI will continue to contact her at all hours and harass her via phone and social media…
A police report dated 16 September 2021 records that the VIC produced insulting and derogatory text messages from the Applicant to the VIC whilst he was in Villawood Detention Centre. However, police detected no offence and found that there was insufficient evidence to justify an apprehended domestic violence order and the police held no immediate concerns for the victim’s safety.
The respondent submits that this history demonstrates violence by the Applicant towards his former partner, and that the death threats made by the Applicant to his former partner and harassment by the forwarding of numerous emails or SMS messages of an insulting nature constitutes family violence.
Whilst the Applicant has clearly engaged in verbal abuse and made threats to kill their former partner, the evidence establishes that no actual violence has occurred and that the former partner did not consider him to be a threat to her.
In answer to the conviction concerning the unauthorised pistol, the Applicant states that:
“The gun charge was my kids toy gun sitting on the back seat of my partners car. I was told by legal aid to plead guilty to get it over with because I can’t go to jail for it. I bought the toy gun in Queensland. I’ve never been charge (sic) with any robbery or any violent charge just driving.”
The Tribunal has no power to review the criminal conviction and must proceed on the basis that the facts as found at the trial are correct: see HZCP v Minister for Immigration and Border Protection [2019] FCAC 202. In that decision McKerracher J said at [63]:
Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends. That is the point of deportation cases, as recently succinctly summarised in LLF. [Department of Justice and Deregulation v LLF [2018) VSCA 155]. The position is not different in substance in the present situation where the jurisdictional facts that underpinned the power of revocation under s 501CA (4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA (3) (b). As to the former, a legally effective cancellation decision requires the Minister or a delegate to be satisfied that the non-citizen does not pass the character test by operation of, relevantly to this case, s 501 (6) (a) and s 501 (7) (c) of the Migration Act. It, therefore, required a properly formed state of satisfaction that the non-citizen had been sentenced to a term of imprisonment of 12 months or more. In this sense, the sentence lies at the heart of or is the foundation for the s 501 (3A) mandatory cancellation provision, which is the precondition to any revocation decision under s 501CA: see s 501CA (1).
Nevertheless, the Tribunal is to form an “understanding of the actual circumstances involved in the various offences and their sentences”: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [202] and [207], per Buchanan J. The Tribunal also notes the observations of North J in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91] when His Honour referred to the fact that it was not possible to reach a “legally reasonable conclusion” concerning the seriousness of an offence without informative details of the actual circumstances involved.
These authorities are of direct relevance in view of the Applicant’s claim that the charge of possessing an unauthorised pistol was a toy. The Applicant’s version is supported by the sentencing remarks of His Honour Magistrate Abdul-Karim made on 12 February 2021 when His Honour said:
“In relation to the other matters, I note the possess unauthorised pistol is a matter that you provided an explanation. I accept that on the balance of probabilities…”.
The Tribunal notes that the pistol was observed protruding from beneath the seat of the vehicle, and not as the Applicant claims ‘sitting on the back seat’ of the car.
The seriousness of this offence can be gauged by the fact that in respect of such charge, the Applicant was sentenced to a community corrections order with supervision and rehabilitation. There is no conviction recorded against the Applicant for any family violence.
Finding on Primary Consideration B
The Tribunal finds that this consideration does not significantly weigh against revocation of the original decision.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has four children under the age of 18 years from two relationships namely: Z (17 years) SCL (7 years); TLN (aged 5 years) and EDN (aged 4 years). An adult son (T) and Z are each a product of a previous relationship between their mother and the Applicant.
The Applicant states that his current partner and the three younger children reside in regional New South Wales and that before the Applicant was imprisoned he was working in Sydney but returning every weekend to see them and look after them.
The Applicant stated that he spent nearly every weekend with his children and enjoys spending time with them. The Applicant claims to love all his children, and that they look forward to his returning home. The Applicant seeks to remain in Australia to see his children grow up and share the task of raising them with his current partner. The Applicant’s adult son (T) has submitted a letter in support which states that both for him and his brother (ZC) the Applicant “hasn’t been the best role model. Actually he was no role model”.
The Applicant has listed four nephews, namely, GN, IN, JN, and EN; and a niece ON. No details of their dates of birth or ages have been provided, nor is there detailed evidence provided of the Applicant’s relationship with those children.
The Applicant has not lived with his three youngest children since he and his former partner separated in October 2019. Thereafter the former partner moved to reside in a country town. The Applicant claims that he would visit the town and stay in a hotel on weekends. The frequency of his visits depended upon his financial circumstances and it is not possible to know with any accuracy how regularly such visits took place. However, he states that he would take the children to the hotel and stay overnight with them. It does not appear that the Applicant has had any involvement in the day-to-day care of the children except when he has exercised access since the separation of the Applicant and his former partner.
The Applicant states that whilst he has been in custody or in detention he has maintained regular contact by telephone with his three youngest children. However, subject to one child that shares the same birthdate as himself, he did not know the birthdates of the other two infant children. He states that he did arrange for presents to be given to them when reminded of their birthdays by their mother. The Tribunal was not provided with any material concerning the minor child Z.
The Applicant’s former partner did not provide any statement nor oral testimony, despite being asked to do so by the Applicant. Accordingly, the Tribunal has no current evidence of the living conditions nor of the relationship between the Applicant and his three youngest children other than the Applicant’s own evidence. The Applicant was not paying maintenance for his children as at November 2019. In his oral evidence, the Applicant referred to the fact that his Centrelink payments were debited with payments for the children. Accordingly, the Tribunal infers that a maintenance order exists.
Testimony of Adult Son
The Applicant’s eldest son, T, who is 19 years of age, provided both a statement and oral evidence. He said that the Applicant was “no role model”; that the Applicant ceased living as a family when he was 10 years old and that for a period of approximately 18 months to two years there was no communication between the Applicant and T. The Tribunal infers that the Applicant has had little to do with the upbringing of this child, now an adult. However, T expressed his support for the Applicant remaining in Australia.
The remaining child of the Applicant, Z, who is 17 years of age, provided no statement and did not provide evidence in support of the Applicant.
The Tribunal accepts that the Applicant has a close relationship with his young children as is evident from photographs which have been tendered. The photographs depict happy, young children in the presence of the Applicant. As to the nieces and nephews, the evidence is scant and insufficient to enable the Tribunal to come to any conclusion concerning any close relationship between them and the applicant.
Testimony of Applicant’s Sister
Ms PBW describes the applicant as having a troubled childhood following the death of their father when the Applicant was nine years of age. Further, during the past 10 years, four siblings and their mother have passed on. Ms PBW refers to the fact that the Applicant is “a very supportive partner” and that he is a “great father and family man”.
Ms PBW states that the children greatly miss their father (the Applicant) and that the Applicant calls them several times during the day, when they go to school and before rugby games at weekends and share their quality time face timing or saying good night. Ms PBW states that the Applicant “has certainly turning his life around being in the circumstances that has surrounded his life over the past few months. The children really need their father and I ask you to please give them another chance to be together”. PBW stated that the children’s mother wishes the Applicant to maintain a fatherly relationship with her infant children. However, the children’s mother has blocked communication with PBW and the Applicant’s family.
Ms PBW states that the Applicant have two other siblings, a sister who resides in the USA and a brother who resides in Queensland. There are no other siblings in Fiji. She stated there are no social welfare programs in Fiji and that it would be hard on him and his children to be separated.
Ms PBW states that the family is a close-knit family; that she and a husband will assist the Applicant upon his release from detention; and that the period in detention has been a period for reflection for the Applicant.
In another statement, also provided by Ms PBW, she states that the Applicant has tried hard to live a normal working life but has mixed with the wrong company; he has three “lovely, beautiful loving young children”; that he is a loving father and very caring and that the children love him and “think the world of him”. She states that there are no siblings now remaining in Fiji.
Ms PBW, who lives permanently in Australia but who has a business in Fiji, provided evidence that she and her husband are willing to assist the Applicant. She was generally aware of his criminal convictions. The Tribunal notes that although such support was previously available, it has not been sufficient to prevent the Applicant persisting in his criminal activities. Significantly, Ms PBW stated that there is a large extended family still residing in Fiji. Ms PBW spoke of the fact that a large house which is owned by a member of the family is fully occupied by other family members and that there are virtually no employment prospects for the Applicant in Fiji.
The Tribunal accepts that the best interests of the Applicant’s infant children would be served better if the Applicant were to remain in Australia.
Finding on Primary Consideration C
The Tribunal considers that the best interests of minor children weighs strongly in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
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.
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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)   acts of family violence; or
(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)    worker exploitation.
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 as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion. In Leha v Ministerfor Immigration [2000] AATA 1054 Deputy President McMahon stated at [34) that there “would be a general expectation in the community that the Act would be administered fairly and humanely”: see also FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J); see also Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 where at [36] the Deputy President said:
“… The expectation of the Australian community should be taken to be the expectation of the informal, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under section 501”
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 Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.

It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Applying these principles, the Tribunal has had regard to the persistent offending of the Applicant; to his demonstrated history of disobedience to the law and the fact that his pattern of offending of driving while disqualified and of possession of illicit drugs is continuing. There is no question that the Applicant has a “substantial criminal record”.
Finding with respect to consideration of the Australian community
It is a well-established principle that the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]. The offending of the Applicant has mostly been for traffic offences and driving related offences. The Applicant has failed to comply with a Drug Rehabilitation Program and has failed to heed repeated warnings although he expressed contrition.
In his application the Applicant states: “I swear and promise Sir/Madam I will never come to jail again… Now I know the risk of my Visa being cancelled.”
Such a promise must be considered with reserve bearing in mind his prior statements of being aware that his offending impacts upon the community, and subsequent convictions.
The Applicant has demonstrated a consistent failure to comply with Australian law. The Tribunal notes that he commenced his offending approximately two years after arriving in Australia and that up to 2014, the Applicant committed offences virtually annually. There was a period between 2014 to 2019 when no convictions were recorded. However, the fact that the Applicant has returned to criminal conduct, and criminal conduct involving the use and possession of drugs, is of serious concern.
Further sanctions previously imposed by the courts concerning his driving, namely having been disqualified repeatedly and declared a Habitual Offender, have been ignored. With the combination of the offences involving high range PCA and that the applicant’s possession of and use of drugs, renders the applicant a danger to the community.
Finding on Primary Consideration D
The Tribunal finds that this consideration weighs moderately against revocation.
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
OTHER CONSIDERATIONS
International Non-Refoulement Obligations
This consideration is not relevant in this matter.
Extent of Impediments to the Applicant if Removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, including 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 Tribunal must consider the extent of impediments if the Applicant were removed from Australia. The Applicant has been in Australia for 23 years, and in that time has grown accustomed to life in Australia. However, there are no substantial language or cultural barriers; and the medical and/or economic support available to the Applicant will be similar to that in Australia. The Tribunal notes the claim of Ms PBW that there are no social welfare programs available in Fiji which would assist the Applicant.
The Applicant has undergone a medical procedure, namely a colonoscopy in late 2021. The Applicant asserts that an illness may be developing as a result of the finding of a large number of polyps during the medical examination, which were subsequently removed. There is no diagnosis of any existing significant illness. The Applicant has been advised to have a follow-up examination in six months.
The publications provided to the Tribunal by the Applicant suggest that the medical services in Fiji may not be as readily available to the Applicant. Reference is made to two 2011 publications which review the Fiji Islands health system. Such reports indicate that the health system was then under stress for a variety of reasons. An extract states:
About 70 – 80% of the population has access to primary health care but only about 40% has access to quality health services due to population dispersal.
Irrespective of these publications, there is no evidence that the medical service in Fiji could not provide appropriate treatment to the Applicant if needed.
This consideration weighs moderately in favour of revocation.
Impact on Victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration is not directly relevant since there is no significant crime of violence committed against any person. There is impact only in the sense that the driving record of the Applicant has exposed victims to potential danger. There does not appear to be any serious impact as a result of the Applicant’s one common assault offence which occurred some 20 years ago and received a light sentence. As a result, this other consideration carries little weight.
Links to the Australian Community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, Nature and Duration of Ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant is 46 years of age and has resided in Australia for 23 years. As referred to above, the Applicant would face a period of readjustment if he were returned to Fiji where he has few relatives capable of supporting him. All the Applicant’s five children, his former and current partner, one brother, one sister, six uncles and aunts, 15 nieces and nephews and 12 cousins reside in Australia. However, according to the evidence of his sister, the Applicant also has some extended family in Fiji
There is evidence that the Applicant’s strongest ties to Australia are his three infant children and his sister, Ms PBW. It is also relevant that the Applicant’s adult son provided evidence in support of the Applicant in these proceedings.
There is no evidence that the Applicant has made any positive contribution to the Australian community apart from his time spent in gainful employment. The Applicant does not appear to own any property in Australia.
In conclusion, there is evidence of a strong tie between the Applicant and his children and his sister, all of whom reside in Australia. The Applicant will be able to maintain contact with his family in the future by electronic means should he be removed, though this is not ideal.
The Tribunal notes that the Applicant has qualified as a forklift driver and scaffolder in Australia, but the availability of work for such skills in Fiji are not known beyond the evidence of the Applicant’s sister which indicates work in general is difficult to come by.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh strongly in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter.
CONSIDERATION
There are considerations both in favour and against the Applicant’s application.
Factors in Favour of Revocation
In relation to the Applicant’s criminal offending, the offences with which the Applicant has been convicted are, in the main, driving offences. Subject to one assault, which took place in a domestic situation almost 20 years ago, the Applicant has not been convicted of any criminal offence involving violence to any other person. The Tribunal therefore accepts the submissions made by the legal representative for the Applicant that the Applicant is not of violent disposition. Accordingly the Tribunal does not regard the Applicant as being an unacceptable threat to the community.
There is no evidence to suggest that the offending is increasing in seriousness. There are no identifiable victims of any of his offending, other than the single common assault conviction.
The Applicant was not convicted of any offences between 2014 and 2019. On 2 September 2019 the Applicant was declared a habitual offender and was disqualified from driving for a period of five years from 6 August 2030. The period between 2014 and 2019 demonstrates that the applicant is capable of complying with the law.
The Applicant states that the driving offence for which he was convicted in 2019 arose only because he was unable to attend to his job unless he used to motor vehicle. Accordingly he misguidedly, and in breach of the habitual offender order, drove his vehicle. The Tribunal notes the excuse, though does not accept that it makes the behaviour appropriate in the circumstances.
The eldest child of his former relationship (T) stated that he supported his father’s remaining in Australia although the links between them appear to be tenuous. However, there is apparently a strong bond between the Applicant and the three infant children of the Applicant’s second relationship. Although the relationship between the two parents has ended, the Applicant’s former partner has stated that she would like the Applicant to be able to perform a parental role in the lives of the children. Photographs produced at the hearing show the three infant children with the Applicant and their mother in a happy family setting. It is obviously in the best interests of the children that they have a father in their lives. The Applicant claims that until he was arrested and then detained, he would see his infant children as frequently as possible.
Whilst the Applicant has an extended family in Fiji, his sister and other relatives all now live in Australia and a permanent residence in Australia.
The Applicant has certain work skills but whether they can be utilised in Fiji is unknown.
The Applicant may develop a possible future illness as indicated by the removal of 40 polyps from their stomach. It is not known whether the medical services available in Australia would be more readily available if the Applicant developed a serious illness than in Fiji.
The Applicant has stated that his period in incarceration and his period in detention since April 2021 has given him time to reflect upon his life choices. The Applicant has vowed that he will not breach the law again. The Tribunal notes that the age of the Applicant (46 years) might suggest that he will be more responsible in the future.
The Respondent accepted that the offending prior to 2012 did not warrant cancellation of the Applicant’s visa. The Respondent issued a Notice of Intention Not to Cancel Visa on 16 August 2012. The subsequent offending comprises two separate occasions of driving whilst disqualified and possession of illicit drugs. No conviction for any crime of violence has been recorded.
Factors Against Revocation
The Applicant’s past criminal record demonstrates that he has been unwilling to comply with the Australian law, despite repeated gaol sentences. Their criminal record demonstrates that the Applicant has displayed little regard in the past for observing the legal requirements concerning the use of motor vehicles and the possession of illicit drugs.
The Applicant has been untruthful in answers supplied by him in the past to the authorities. The answers which he provided to this Tribunal during the hearing concerning his arrival cards were false, based upon his prior explanations.
The cost to the community for the past offending of the Applicant has been substantial; involving police, courts, and prison costs.
The Applicant’s claim that he will now be a reformed character must be taken with the greatest reservations bearing in mind the long history of offending.
The expectations of the Australian community would weigh heavily in favour of non-revocation.
The Applicant continued to offend after 16 August 2012 when the notice that his visa would not be cancelled was issued.
FINDINGS
The Applicant does not pass the character test under section 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the cancellation decision, having regard to the primary and other relevant considerations in Direction No.90.
Primary Considerations
In relation to the protection of the Australian community, the Tribunal has found that:
(a)the nature and seriousness of the applicant’s offending conduct weighs against revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct to which he has in the past weighs moderately against revocation of the cancellation decision.
Overall, the Tribunal has concluded that the protection of the Australian community primary consideration weighs strongly against revocation of the cancellation decision.
With respect to the remaining primary considerations, the Tribunal finds that:
(a)the family violence primary consideration was only slightly relevant and did not weigh significantly against revocation;
(b)whilst the information regarding the Applicant’s infant children before the Tribunal was not extensive, the evidence is sufficient to show that this primary consideration should be given strong weight in favour of revocation;
(c)the Expectations of the Australian Community would be that the cancellation decision should not be revoked and this primary consideration weighs moderately against the revocation of the cancellation decision
Other Considerations
The Tribunal found the following with respect to the other considerations:
(a)international non-refoulement obligations did not have any significant weight in this case;
(b)consideration of the impact on victims did not arise in a significant way on the material before the Tribunal;
(c)the extent of impediments if removed was given weight moderately in favour of revocation;
(d)the Applicant’s link to the Australian community, particularly the strength, nature and duration of ties to Australia as a result of his family connections weigh strongly in favour of the revocation of the cancellation decision;
(e)the impact on Australian business interests did not arise on the material before the Tribunal.
CONCLUSION
The Tribunal finds that but for the best interests of the minor children in Australia, the factors would weigh strongly against revocation of the decision to cancel the Applicant’s visa.
However, the Tribunal considers that the best interests of minor children is a factor which weighs so heavily that it, in combination with the other considerations, overrides the considerations weighing against revocation. The Tribunal is satisfied that it would be to the children’s detriment if the Applicant were effectively removed from their lives, except for electronic communication. It is clearly in their best interests that the love and affection which he claims to have for his children, and which is not disputed, but rather supported by the observations of the Applicant’s sister, should be used to assist in the infant children’s upbringing.
Having regard to all the primary considerations and the relevant other considerations in Direction No.90, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and a substitute a new decision that the cancellation decision should be revoked.
DECISION
The reviewable decision is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), as there is another reason why it should be revoked.

I certify that the preceding 158 (one hundred and fifty - eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

................................[SGD]........................................
Associate
Dated: 17 January 2022

Date(s) of hearing: 5 & 6 January 2022

Solicitors for the Applicant: Mr F Nikjoo, NIKJOO LAWYERS

Counsel for the Joined Party: Ms N LAING

Solicitors for the Joined Party: Mr J Pinder, MINTER ELLISON

Details

AGLC: Nasilasila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 43
Case: [2022] AATA 43
Decision Date: 17 January 2022

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, a Fijian citizen, against the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth) due to failure to pass the character test. The Applicant had resided in Australia since 1987, holding various visas, including a Spouse visa and a Resident Return visa. His criminal history, spanning from 1998 to 2021, included numerous driving offences, multiple convictions for driving with a prescribed concentration of alcohol, driving while disqualified, and other traffic infringements. More recently, he was convicted of possessing an unauthorised pistol and cannabis.

The primary legal issue before the Tribunal was whether there was "another reason" why the Applicant's visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This required the Tribunal to consider Ministerial Direction No. 90, which outlines various factors to be weighed, including the nature and seriousness of the offending conduct, the risk of reoffending, the protection of the Australian community, the strength, nature, and duration of ties to Australia, and impediments to removal.

The Tribunal reasoned that while the Applicant had a lengthy and concerning criminal history, including recent serious offences, the specific circumstances of the pistol possession charge were mitigated by the magistrate's decision to place him on a Community Corrections order rather than imposing a custodial sentence. Furthermore, the Tribunal considered the Applicant's established ties to Australia, including family relationships, and noted that while he had a history of drug and alcohol misuse, reports indicated a medium to low risk of reoffending and some reflection on his past conduct. Weighing these factors against the risk to the community, the Tribunal concluded that there was another reason to revoke the cancellation.

Consequently, the Tribunal set aside the original decision to cancel the Applicant's visa and substituted it with a new decision revoking the cancellation. This meant the Applicant's visa was no longer cancelled under section 501(3A) of the *Migration Act 1958* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:(e)international non-refoulement obligations;(f)extent of impediments if removed;(g)impact on victims; and(h)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.FACTS The Applicant, who is 46 years of age, was born in Fiji. The Applicant is a citizen of Fiji.EVIDENCEStatements The Tribunal has had regard to the various statements in support of the Applicant before it. These statements include those from two of the Applicant’s sisters, one who resides in the United States of America and one who resides in Australia, and his eldest son, referred to as (T) below. For reasons of confidentiality, the names of those who have provided statements or references are not reproduced in this decision.Oral Evidence The Tribunal heard oral evidence from the Applicant, and from the Applicant’s sister and adult son.Testimony of Applicant The Applicant provided oral testimony to the Tribunal, and the written claims of the Applicant must be compared with the facts which were adduced during the hearing. APPLICANT’S VISA HISTORY The Applicant first visited Australia on 25 April 1987 when he was 12 years of age. He again visited Australia in 1995 for five months, and subsequently returned as the holder of a Sports (Class TE) (subclass 421) Visa. Thereafter the Applicant was granted a Spouse (Class BC) (subclass 100) visa and later a Resident Return (Class BB) (subclass 155) Visa. Since 1994 the Applicant has left Australia on three occasions, the longest being for a period of two months. APPLICANT’S CRIMINAL HISTORY The schedule which follows shows details of the offences for which the Applicant has served a custodial sentence: The Applicant has had convictions for driving with a prescribed concentration of alcohol (PCA) on five occasions, the most recent being a conviction on 6 August 2008 when he drove with a high range; (b) driving while disqualified: The Applicant was convicted of driving whilst disqualified from holding a licence on the following dates:·6 August 2008 in Liverpool Local Court;·2 September 2009 In Manly Local Court·5 November 2010 in Central Local Court ·9 October 2013 in Parramatta Drug Court ·6 September 2014 In Parramatta Local Court·26 September 2014 in Parramatta Drug Court ·12 February 2021 in Liverpool Local Court(c) other traffic offences: The Applicant was also convicted of the following other traffic offences on the noted dates:·28 April 1998 in Burwood Local Court: odriving without a licence; andodriver stating false name;·21 December 2004 in Waverley Local Court: onot comply with P1 licence; onot making ticket available in restricted area;ofailure to comply with licence condition; ·1 June 2005 in Liverpool Local Court:ostating false name or address; andorefusing to produce licence / not comply with P1 licence; otake and drive conveyance without consent of owner;·4 August 2005 in Campbelltown District Court: otake and drive conveyance without consent of owner; ·28 March 2006 in the Central Local Court: olicence expired less than two years before – first offence;onot reverse vehicle safely;onot give particulars to other driver;ouse unregistered registrable class A motor vehicle;oclass A vehicle displaying misleading registration label;ousing uninsured motor vehicle; ·9 October 2006 in Campbelltown District Court: otake and drive conveyance without consent of owner;·14 November 2006 in Kogarah Local Court:oseatbelt not adjusted/fastened; ·1 August 2008 in Campbelltown District Court: otake and drive conveyance without consent of owner;·6 August 2008 in Liverpool Local Court:oexceeding the speed limit;odriving conveyance without consent of owner;·8 September 2008 in Liverpool Local Court: otake and drive conveyance without consent of owner; ·19 September 2008 in Liverpool Local Court: otake and drive conveyance without consent of owner;·27th of August 2009 in Manly Local Court: otake and drive conveyance without consent of owner;·2 September 2009 in Manly Local Court: odriver/rider stating false name/address; otake and drive conveyance without consent of owner; ·19 February 2013 in Waverley Local Court: odid not stop at stop line;·12 February 2021 in Liverpool Local Court:onot turn right from multilane road from right lane. Other offences

Evidence

Evidence Before The Court

The Tribunal has had regard to the various statements in support of the Applicant before it. These statements include those from two of the Applicant’s sisters, one who resides in the United States of America and one who resides in Australia, and his eldest son, referred to as (T) below. For reasons of confidentiality, the names of those who have provided statements or references are not reproduced in this decision.Oral Evidence The Tribunal heard oral evidence from the Applicant, and from the Applicant’s sister and adult son.Testimony of Applicant The Applicant provided oral testimony to the Tribunal, and the written claims of the Applicant must be compared with the facts which were adduced during the hearing. APPLICANT’S VISA HISTORY The Applicant first visited Australia on 25 April 1987 when he was 12 years of age. He again visited Australia in 1995 for five months, and subsequently returned as the holder of a Sports (Class TE) (subclass 421) Visa. Thereafter the Applicant was granted a Spouse (Class BC) (subclass 100) visa and later a Resident Return (Class BB) (subclass 155) Visa. Since 1994 the Applicant has left Australia on three occasions, the longest being for a period of two months. APPLICANT’S CRIMINAL HISTORY The schedule which follows shows details of the offences for which the Applicant has served a custodial sentence: The Applicant has had convictions for driving with a prescribed concentration of alcohol (PCA) on five occasions, the most recent being a conviction on 6 August 2008 when he drove with a high range; (b) driving while disqualified: The Applicant was convicted of driving whilst disqualified from holding a licence on the following dates:·6 August 2008 in Liverpool Local Court;·2 September 2009 In Manly Local Court·5 November 2010 in Central Local Court ·9 October 2013 in Parramatta Drug Court ·6 September 2014 In Parramatta Local Court·26 September 2014 in Parramatta Drug Court ·12 February 2021 in Liverpool Local Court(c) other traffic offences: The Applicant was also convicted of the following other traffic offences on the noted dates:·28 April 1998 in Burwood Local Court: odriving without a licence; andodriver stating false name;·21 December 2004 in Waverley Local Court: onot comply with P1 licence; onot making ticket available in restricted area;ofailure to comply with licence condition; ·1 June 2005 in Liverpool Local Court:ostating false name or address; andorefusing to produce licence / not comply with P1 licence; otake and drive conveyance without consent of owner;·4 August 2005 in Campbelltown District Court: otake and drive conveyance without consent of owner; ·28 March 2006 in the Central Local Court: olicence expired less than two years before – first offence;onot reverse vehicle safely;onot give particulars to other driver;ouse unregistered registrable class A motor vehicle;oclass A vehicle displaying misleading registration label;ousing uninsured motor vehicle; ·9 October 2006 in Campbelltown District Court: otake and drive conveyance without consent of owner;·14 November 2006 in Kogarah Local Court:oseatbelt not adjusted/fastened; ·1 August 2008 in Campbelltown District Court: otake and drive conveyance without consent of owner;·6 August 2008 in Liverpool Local Court:oexceeding the speed limit;odriving conveyance without consent of owner;·8 September 2008 in Liverpool Local Court: otake and drive conveyance without consent of owner; ·19 September 2008 in Liverpool Local Court: otake and drive conveyance without consent of owner;·27th of August 2009 in Manly Local Court: otake and drive conveyance without consent of owner;·2 September 2009 in Manly Local Court: odriver/rider stating false name/address; otake and drive conveyance without consent of owner; ·19 February 2013 in Waverley Local Court: odid not stop at stop line;·12 February 2021 in Liverpool Local Court:onot turn right from multilane road from right lane. Other offences

Decision

Reasons for decision

Having regard to all the primary considerations and the relevant other considerations in Direction No.90, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and a substitute a new decision that the cancellation decision should be revoked.DECISION The reviewable decision is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), as there is another reason why it should be revoked.

Ratio Decidendi

Legal Principle Established

On Friday, 12 February 2021 the Applicant appeared before Magistrate Abdul-Karim In the Liverpool Local Court, when the Applicant was charged in connection with having an unauthorised pistol in his possession and cannabis in his possession. The Applicant pleaded guilty. His Honour noted that whilst there had been a gap in his offending, the Applicant had continued to incur driving offences, namely driving while disqualified, having cannabis in his possession, and having a pistol in his possession. As detailed hereunder, the magistrate accepted the Applicant’s application in connection with the pistol charge. The Magistrate placed the Applicant on two Community Corrections orders, one being for a period of six months, and the other for a period of 18 months which required the Applicant to accept supervision and to report to Community Corrections at Liverpool within seven days of release from custody.PRIMARY CONSIDERATION A: RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT REOFFEND OR ENGAGE IN OTHER SERIOUS CONDUCTNature and Seriousness of the Conduct The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The Applicant has been convicted of more than 50 offences. The majority of the offences are related to driving or use of a motor vehicle. Between 1998 and 2021 the Applicant has been convicted of driving without a license, providing a false name, mid-range PCA (repeated offences), failure to comply with license condition: use unregistered motor vehicle, and speeding. The charges also record having goods in personal custody suspected of being stolen (repeated charges); stealing property; taking another vehicle without permission; and possessing prohibited drugs (repeated offences) and most recently having an unauthorised pistol in his possession, although the last charge is explained hereunder. The Tribunal notes significant matters relevant to the consideration of the protection of the Australian community:(i)The Applicant has been convicted of numerous offences. Whilst most of the offences relate to the use of a motor vehicle, included are drug offences, and more recently, the offences have included possession of an unauthorised pistol. A Community Offender Services Probation and Parole Service Presentence Report dated 9 July 2008 records that the Applicant consumed alcohol heavily. The Applicant denied to the investigating officer that he used illicit drugs and reported no history of illicit drug use.(j)A Probation and Parole Service report to the state Parole Authority relating to a breach of parole in 2010 records of the Applicant that they were assessed to be “at medium to low risk of reoffending”.(k)Another report dated 20 December 2010 records that, during an investigation concerning a breach of parole, the Applicant had removed themselves from their residence and provided no other address. The recommendations states:“It is of concern that [the Applicant] appears to have attempted to mislead this service. That regarding his domestic and accommodation circumstances, and that the parolee was evicted from his approved residence shortly after release, which resulted in his relocation to a residence that has yet to be approved by this Service.” [26](l)A Breach of Parole Report dated 26 May 2015 refers to the fact that the Applicant had resumed illicit drug use; that he was required to complete the traffic offender intervention program but that he had failed to enrol.(m)A sentence Assessment Report dated 22 September 2020 records that the Applicant had reflected upon his offending; that he was able to identify the impact of his offending on his family and the wider community. The report also states:“He revealed that his awareness of the seriousness of his actions as also resulted from his encounter with a person who had lost his children as result of the driving offences of others.He added his disregard for not only his driving related obligation but also the aforementioned incident “hit home” as “I didn’t realise the seriousness of driving”This report is also referred to the fact that the Applicant had failed to attend his appointment on 24 November 2020 with Community Corrections.(n)The Applicant has a history of offending for more than 20 years. Many of the offences are of a minor nature. However there are incidents, culminating in the 2021 conviction for possessing an unauthorised pistol, which indicate that the Applicant continued to offend at a consistent level apart from the multi-year gap in offences committed. Prior Warnings

Date(s) of hearing:	5 & 6 January 2022
Solicitors for the Applicant:	Mr F Nikjoo, NIKJOO LAWYERS
Counsel for the Joined Party:	Ms N LAING
Solicitors for the Joined Party:	Mr J Pinder, MINTER ELLISON