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

[2020] AATA 2581

Palu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2581 (27 July 2020)

Division:GENERAL DIVISION

File Number(s):2020/2804      

Re:Suli Palu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:27 July 2020

Place:Brisbane

The decision under review is affirmed.

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

Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

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

SECONDARY MATERIAL

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

REASONS FOR DECISION

Member Rebecca Bellamy

27 July 2020

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 49 year old citizen of Tonga. In July 1985, when he was 14 years old he moved to Australia to join his mother, step-father, and younger siblings. The most recent visa granted to him was a Class BF Transitional (permanent) Visa (“visa”).

2. His first recorded offending episode was in July 1988 when he had just turned 17. Despite intervention from the courts, he continued to offend.

3. In November 1996, the (then) Department of Immigration and Multicultural Affairs warned the Applicant by telephone that he could be deported because of his offending.[1]

   [1]     Exhibit R3, Respondent’s Supplementary Tender Bundle, page 33.

4. In May 2002, due to his offending, the Applicant was sent a Notice of Intention to Consider Cancelling a Visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).[2] 

   [2]     Exhibit G1, s 501 G-documents, G2, page 142.

5. On 17 April 2003 the Applicant was sent another Notice of Intention to Consider Cancelling a Visa under s 501(2) of the Act.[3] He was sent another one in April 2005[4] and he signed an acknowledgment that he received it.[5] He was sent another in September 2007.[6] In February 2008 in response to that notice he wrote:

   “I am aware of the wrongs in my past but I feel that as time has past I have come to a point in my life where I am very repentent for what I have done and am ready to make an amends and be more efficient not only for myself but for my family and most importantly for my young children whose lives so far, to no fault of anyone but myself, have missed out on.

   The point that I already have Permanent Residence in this country makes me very aware now of the benefit of being an Australian and I'm ready to make a better contribution not only to society but also to the community that I live…

   …I do admit that I have reached a point of maturity in my life where I can make a difference.”[7] [Errors in original]

   [3]     Ibid, page 152.

   [4]     Ibid, page 155.

   [5]     Ibid, page 166.

   [6]     Ibid, page 157.

   [7]     Ibid, page 169.

6. His mother also wrote to the Department saying that she had seen a change in the Applicant and did not think his visa should be cancelled.[8]

   [8]     Ibid, page 167.

7. In June 2008, the Applicant was sent a formal counselling letter which said:

   “The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. I note that 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.”[9]

   [9]     Ibid, page 144.

8. On 16 April 2019 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act on the basis that he did not pass the character test. The Applicant subsequently made representations as to why his visa should not be cancelled. On 4 May 2020 the Applicant was notified that the Respondent had decided not to revoke its decision.[10]

   [10]    Ibid, page 16.

9. The Applicant lodged an application with this Tribunal in May 2020 seeking a review of the Respondent’s decision not to revoke the mandatory cancellation (“Decision under Review”). The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

10. The hearing of this application proceeded on 13 and 14 July 2020. The Applicant gave evidence by video-conference, and two witnesses gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

    LEGISLATIVE FRAMEWORK

11. Section 501(3A) if the Act provides that:

    The Minister must cancel a visa that has been granted to a person if:

    (a)  the Minister is satisfied that the person does not pass the character test because  
    of the operation of:

    (i)  paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)  paragraph (6)(e) (sexually based offences involving a child); and

    (b)  the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

12. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    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.

13. The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]

    “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]

    [11] [2018] FCAFC 151.

    [12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

14. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

15. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[13] I will address each of these grounds in turn.

    [13] Ibid.

    Does the Applicant Pass the Character Test?

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

17. On 30 January 2019, the Applicant was sentenced to a total period of 15 months imprisonment with a parole release date of 30 June 2019.  What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[14] Accordingly, the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[15] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [14]    See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides:

    “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”

    [15]    Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraph 8.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

18. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

19. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

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

    (1)  Informed by the principles in paragraph 6.3 above, a decision maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[16]

    [16]    The Direction, sub-paragraph 7(1)(b).

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

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

22. Part C provides for the decision-maker to take into account “Primary Considerations”[17] and “Other considerations”.[18] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:

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

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

    (c)Expectations of the Australian community.

    [17]    Ibid, paragraph 13.

    [18]    Ibid, paragraph 14.

23. The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

24. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[20]

    [19] [2018] FCA 594.

    [20] Ibid, [23].

25. The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

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

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

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

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

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

    THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY

26. In 1985, the Applicant moved to Australia to join his mother, step-father and siblings who had been living in Australia for some years while he had been cared for by his father and grandmother in Tonga. [21]   

    [21]    Exhibit G1, s 501 G-documents, G2, page 178.

27. According to the Applicant, in his teens his father (in Tonga) died and he started to run away from home and use drugs. By his early twenties he was addicted to heroin. He also had a problem with alcohol. He attributes much of his offending to these things.[22] His offending spans over 30 years.

    [22]    Ibid, page 174.

28. The Applicant used several aliases, including the names of real people, in his dealings with the justice system. He was convicted and sentenced on at least one occasion in the name of someone else.      

29. In July 1988, the Applicant committed (1) assault and robbery with an offensive weapon and (2) common assault. Between 1988 and 2001, the Applicant committed some 35 further offences including:

    ·in 1990, resist arrest and assault police, receiving fines for each;

    ·in 1990, assault (x2), receiving six months imprisonment for each;

    ·in 1991, break and enter with intent, for which he was sentenced to nine months imprisonment;

    ·in 1991, breach of bail (contempt), for which he was sentenced to three months imprisonment;

    ·in 1991, “break, enter and steal” for which he was sentenced[23] to three months imprisonment;

    ·in 1991, “receiving” for which he was sentenced to one month imprisonment;

    ·in 1991, “produce dangerous drug” for which he was fined;

    ·in 1992, “escape legal custody” for which he was sentenced to six months imprisonment, and “breach leave of absence – unlawfully at large” for which he was sentenced to nine months imprisonment;

    ·in 1992, “state false name” for which he was fined;

    ·in 1994, assault occasioning actual bodily harm for which he was sentenced to three months imprisonment;

    ·in 1994, “dishonestly obtain valuable things by deception” (x6) (“fraud offences”) for which he was sentenced (in 2001) to two years imprisonment with a non-parole period of 14 months;

    ·in 1995, armed robbery, for which he was sentenced to three years imprisonment with a non-parole period of 18 months;

    ·in 1998, “goods in personal custody reasonably suspected of being stolen” for which he received a fine; and

    ·in 2001, “assault officer in execution of duty” (x2) for which he received fines.

    [23]    Much later in 2012.

30. The details of most of these offences are not before the Tribunal. The facts of the armed robbery that can be gleaned from the sentencing remarks of the Supreme Court of the Australian Capital Territory are: [24]

    ·the Applicant was involved in robbing a drug dealer of approximately 2 kilograms of cannabis;

    ·the victim (and an associate) had been lured to a lonely spot on the pretext of selling the drugs for $21,000. The Applicant and two others arrived in a stolen car pretending to intend to purchase the drugs. One associate produced an imitation pistol and threatened the victim. The other took the drugs and fled;

    ·they were all later pursued by the police. The Applicant surrendered peacefully. In his possession was a small amount of money that had been made up with cut paper to resemble around $21,000;

    ·the Applicant did not plan the offence but went along with the ringleader. The intention was to sell the drugs to others;

    ·the Applicant was convicted of armed robbery on the basis of “common purpose”, and the jury found that he knew a fake gun would be used; and

    ·the Applicant had pleaded not guilty and was found guilty by a jury. 

    [24]    Exhibit G1, s 501 G-documents, G2, page 99.

31. The Applicant was convicted and sentenced for that offence in the name of an old associate, Mr P. I note that for the purposes of ascertaining the Applicant’s offending history, the Respondent obtained transcripts of offences committed under that name and slight variations of it. Those transcripts were provided to the Respondent. I am satisfied, and the Respondent did not contend otherwise, that the only transcript that related to the Applicant was the transcript concerning the armed robbery in Canberra. The other transcripts before me in the name of Mr P appear to relate to another person, presumably the real Mr P, and I have no regard to them.

32. The sentencing remarks for the fraud offences include the following:

    “The offences were committed between 20 October 1994 and 14 December 1994 and they each involved the [Applicant] falsely representing himself to be someone other than himself to obtain either credit cards or loan facilities from financial institutions…

    …I am informed that the [Applicant] did not appear at his trial in February 1998 and a bench warrant issued...The [Applicant] was re-arrested by police on 12 August 1999 and was granted conditional bail…on 13 August 1999. The [Applicant] again absconded on bail on or about 19 November 1999 at which time he was as I understand it due to face his trial. He was re-arrested on 22 February 2001 when police were called to a domestic dispute between the [Applicant] and his partner. The [Applicant] then remained in custody up until the present date…

    …in relation to each of the charges…between October 1994 until the commission of the last of the offences on 14 December 1994, the [Applicant] was an associate of a man by the name of [redacted] and other people…concerned with a scheme to obtain credit facilities from financial institutions by using various false identities supported by false identification documents including birth certificates, drivers licenses, letters of employment, pay slips and other means of identification…

    …subsequently someone, probably the [Applicant], perhaps one of his associates then obtaining a cash advance up to the limit of the particular credit card or loan facility. Subsequent to the cash advance being obtained in the circumstances where credit cards were involved in these offences, the credit cards were then used on a number of occasions over a lengthy period of time to amass a debit on the particular account usually far in excess of the credit limit…

    …it seems to me that the facts and circumstances that I have specifically referred to in Count One support the general proposition that whatever was the [Applicant’a] role in relation to the obtaining of these credit cards or loan facilities, whatever was the [Applicant’s] involvement in obtaining the relevant cash advances, it is certain that in a large number of cases the subsequent use of the credit cards had nothing to do with the [Applicant] …

    The [Applicant] thus could be seen to be part of a joint criminal enterprise in relation to these matters, by reason of the fact that on the evidence available to me, others…were the organisers of the scheme having both the sophistication and experience to develop the modus operandi of which the [Applicant] took advantage…

    One of the features of [the Applicant’s] background is that since his teenage years he has been a significant abuser of alcohol being involved in a pattern of binge drinking. I am invited to accept that much of his criminal history may be explained by his abuse of alcohol...I am informed that in the last twelve months he has developed a significant relationship and there is a child of that relationship who is now only seven or eight weeks of age…

    I note that his immigration status is problematic. He is a person holding only a permanent residence visa and he may well be a person who will be the subject of orders by the Minister for Immigration at a later time….

    …In my view he is a person who by reason of his addiction to alcohol and by reason of his background is a person in need of the professional assistance of the probation and parole service. It is my view such is the desirability that he have the positive benefit of probation and parole service direction that there exists in this matter special circumstances which require an adjustment of the non parole period in accordance with the terms of s 44 of the Crimes Sentencing Procedure Act. Thus I am justified in adjusting downwards the non parole period to reflect the special circumstances as I find them to be.”[25] [Tribunal insertions for clarity]

    [25]    Ibid, page 85.

1. There is then a five year gap in the Applicant’s criminal history. It appears from the evidence that he gave in the hearing that he was still using heroin in this period (when he was not in incarcerated). In November 2005, he was caught drink driving. He was unlicensed at the time.

2. In 2006, he committed “enter dwelling with intent by break” for which he was sentenced in late 2008 to 18 months imprisonment. In the interim he committed some minor offences including possession of utensils and pipes and failure to appear in accordance with a bail undertaking. He resumed committing minor offences of that nature in 2009, 2010 and 2012. I note that in 2008, the Applicant gave the police his brother’s name when he was arrested for drug possession and the police discovered this because his brother was incarcerated at the time of the offence.

3. In February 2015, in one offending episode the Applicant committed (1) public nuisance, (2) consume liquor on a road, (3) contravene direction or requirement and (4) assault or obstruct police officer, for which he was fined.

4. In or around 2016, the Applicant reconciled with a formed partner and the mother of two of his (now adult) children. Around six months later, he attacked her and was ultimately convicted of “assaults occasioning actual bodily harm – domestic violence offence”. Prior to sentencing, he failed to appear in court in relation to that offence on at least one occasion. In 2019, for the assault he was sentenced to 12 months imprisonment and for failing to appear he was sentenced to three months imprisonment to be served cumulatively.  

5. In passing sentence, the learned Magistrate said the following:

   “It appears that alcohol and drugs have caused a lot of problems over your lifetime, and it was very unfortunate that you chose on this New Year's Eve to drink to excess…. This particular incident — and you are pleading guilty to the circumstances set out in the police sentencing schedule. It involved an attempt at choking the victim, and the statement actually says until she was struggling to breathe. Your daughter had to intervene. Thank goodness she did intervene. Goodness knows what would have happened otherwise. You held her — you held your partner in a headlock. There was some struggling. And there is an allegation that you have pushed her away with such force that she has fallen to the floor, and, as a result of that, she has had a fracture of her arm, of her right arm, together with bruises to her knees, and I have seen the photographs of the other bruises.

   …I accept that there have been no breaches since this offence, but I also, as I have said, take into account the period of time for which you have failed to appear and the police were, essentially, looking for you, I presume, on a warrant.”[26]

   [26]    Ibid, page 50.

6. The police facts include further details, including that around two weeks later when the police questioned the Applicant he denied initiating the assault and claimed that his partner had attacked him and choked him. He said that he had pushed her away from him and that she had fallen to the kitchen floor and begun screaming in pain. In the hearing the Applicant adhered to this version. He said he did not have legal representation at the time so he pleaded guilty to “the full charges”.[27] I am not inclined to accept the Applicant’s version where it is inconstant with the findings made by the court, nor am I permitted to in circumstances where those findings ground the decision-maker’s jurisdiction,[28] which is the case here. Based on the sentencing remarks, I am satisfied that the Applicant initiated the attack on his partner, put her in a headlock and choked her to the point where she struggled to breathe, that their daughter intervened, that the Applicant forcefully pushed his partner to the floor resulting in her fracturing her right arm, and that he subsequently lied to the police about what really happened.

   [27]    Transcript, page 50, lines 43 to 44.

   [28]   HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.

   PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

7. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

8. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

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

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

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

9. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

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

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

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

   (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

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

   (f)The cumulative effect of repeated offending;

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

   (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

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

10. The Applicant has committed numerous violent offences including:

    ·in 1990, resist arrest, assault police and assault (x2);

    ·in 1994, assault occasioning actual bodily harm;

    ·in 1995, armed robbery;

    ·in 2001, “assault officer in execution of duty”; and

    ·in 2016, “assaults occasioning actual bodily harm – domestic violence offence”.

11. For some of these offences, the Applicant was sentenced to imprisonment, in particular for the armed robbery he was sentenced to three years’ imprisonment and for the domestic violence offence he was sentenced to 12 months imprisonment. Adding to the seriousness of these violent offences is the fact that the domestic violence offence was committed against a female and two offences were committed against police officers in the performance of their duties.

12. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. Any sentence of imprisonment therefore indicates serious offending. Courts have sentenced the Applicant to imprisonment on numerous occasions. In 1990 the Applicant was sentenced to terms of six months imprisonment for two assaults.  In 1991 the Applicant was sentenced to nine months imprisonment for “break and enter place with intent” and three months imprisonment for breaching bail (contempt). He also committed a “break enter and steal” in that year but was not dealt with for that until in 2012 when he was sentenced to three months imprisonment. In 1992, he was sentenced to two months imprisonment for breach bail (contempt) and six months imprisonment for escape legal custody. In 1994 he was sentenced to three months imprisonment for assault occasioning actual bodily harm. In 1995 he was sentenced to three years imprisonment with a non-parole period of 18 months for armed robbery. In 2001 he was sentenced to two years imprisonment for six offences of “dishonestly obtain valuable thing by deception”. In 2007, he was sentenced to 21 days imprisonment for failing to appear in accordance with an undertaking. In 2008 he was sentenced to six weeks imprisonment for failing to appear in accordance with an undertaking, and 18 months imprisonment for “enter dwelling with intent by break”. In 2019 he was sentenced to 12 months imprisonment for the domestic violence offending and three months imprisonment for failure to appear in accordance with undertaking. These sentences include lengthy terms of imprisonment for offences involving violence, dishonesty and break and enter. 

13. The Applicant’s offending is frequent and spans over 30 years. Without having details of the Applicant’s earlier offending it is difficult to identify any trends of increasing seriousness. What is apparent is that his most recent offending, being the domestic violence offence, was very serious. His offending includes several types of offences against the administration of justice, being assault police, escape lawful custody, state false name and fail to appear in accordance with undertaking. He committed the most recent of these in 2017. These offences demonstrate disregard for the criminal justice system, if that were not already apparent from the persistence of the Applicant’s offending.

14. The cumulative impact of the Applicant’s violent offending is that there are several victims of his violence including an ex-partner who suffered a fractured arm. There are often indirect victims of violent offending, the most obvious in this matter being the Applicant’s daughter who intervened to stop her father from choking her mother – a terrible thing to have to do. The Applicant’s property and fraud offences have likely resulted in financial loss. His offences relating to the administration of justice frustrated the work of the police, the courts and corrective services.         

15. In December 2019, the Applicant wrote to the Respondent with respect to his criminal history. In that letter he denied that any of the Mr P transcripts related to him. He referred specifically to the transcript from the Supreme Court of the Australian Capital Territory, saying:

    “I would also like to state for the record that this transcript is not about me nor does it belong to me. I am guessing that this has been a mistake and that someone has made, and someone else’s paperwork has been accidentally attached with mine. I do not know this person nor do I know anything about the details of the transcript.”[29]

    [29]    Exhibit G1, s 501 G-documents, G2, page 175.

16. There is only one transcript from that court and it relates to the armed robbery in the name of Mr P. That transcript contains information that appears to describe the Applicant. In the hearing the Applicant admitted he committed that armed robbery. He said he gave the name of a friend he used to know who also used drugs. Accordingly, the letter he sent to the Respondent contained two false statements, the first being that the transcript was not about him, and the second being that he did not know the person referred to in the transcript. The Applicant initially denied responsibility for having made these false statements, saying that a person who was helping him while he was incarcerated had written the letter for him and he had not read it. He said:

    “I told her that the [Mr P] - out of all [Mr P] stuff, all of them are not mine except for the charges in Canberra.”[30]

    [30]    Transcript, page 34, lines 37 to 39.

17. The claim that he was not the person referred to in the transcript was repeated in the Applicant’s Statement of Facts Issues and Contentions (“SFIC”), and the Applicant also denied responsibility, saying a different person helped him with that document. However, he ultimately admitted that he had told both of the people who helped him that he had not committed the armed robbery, and put it down to a mistake. The Applicant is responsible for making sure that representations made by him or on his behalf to the Department are correct. The false statements in the letter to the Department must weigh against the Applicant, and more so because they were repeated, rather than corrected, in the his SFIC. 

18. The Applicant received several warnings that his visa could be cancelled due to his offending. While he did not admit to having received all of them:

    ·there is a file note dated in 1996 in the Tribunal materials that purports to have been made by an employee of the (then) Department of Immigration and Multicultural Affairs and which records a telephone conversation with the Applicant in which the Applicant was warned that he could be deported because of his offending;

    ·the Tribunal materials contain a copy of a written warning that was sent to the Applicant in April 2005 and a copy of a signed acknowledgment that he received it; and

    ·the Tribunal materials contain a copy of a written warning sent to the Applicant in September 2007, and a handwritten response from the Applicant that was dated February 2008.

19. I am therefore satisfied that the Applicant received at least two written warnings and one telephone warning that his visa could be cancelled due to offending. His response in 2008 indicates that, by that time at the latest, he understood that his visa could be cancelled due to his offending.

20. I do not consider factor (i) of paragraph 13.1.1(1) of the Direction applies to the Applicant’s offending or circumstances, so it does not require consideration.

21. The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the reviewable decision.

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

22. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

    ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

    The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct

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

24. The Applicant has committed various types of offences. His violent offending has resulted in, at the very least, physical injury including a fractured bone. The domestic violence offence also caused the victim to struggle to breathe which must have been frightening. The potential of further violent offending resulting in physical injury to individuals in the community is obvious. The nature of harm that is likely to arise from further armed robbery, albeit with a fake weapon, is fear and loss of property or financial loss. Breaking into private property has the potential to cause a sense of violation and insecurity to the occupant, and normally loss of personal or commercial property. Further fraud offences would obviously cause financial loss. These impacts are all significant and harmful to members of the community. The harm that results from domestic violence is particularly significant given the violation of trust involved, the fear caused to the victim and possibly other who are present, and the physical and psychological injury caused to the victim. 

    The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct

25. The Applicant attributes his offending to alcohol and drugs. According to him he has a long-standing heroin addiction. Sentencing courts have also mentioned his problem with alcohol. The Applicant gave evidence that, while he has tried many times to stop using heroin, he has never sought any kind of intervention. He said he can stay off it for two or three weeks and then he resumes use.

26. The Applicant told the Tribunal that he is now in a position to deal with his drug and alcohol problems and refrain from offending. He said:

    “This is the first time I’ve actually got professional help. This is the very first time that I actually got counselling and professional help. If you asked me before I got this help I would be scared, I would say I want to move away and go away from somewhere I don’t - I’m not scared of going back to Brisbane. I’ve learnt so much from all the counselling and all the courses that we have done not only in Brisbane detention centre but also here as well. The drug and alcohol, even parenting, relationship, dealing with emotions which I have never done before. I’m more equipped now to deal with the outside world than I ever did before.  I’m not afraid of getting out. I know I can do it. I know where to find help now, you know. I know how important, like, professional help is. I mean, people who know what to do with not only the physical habit that you’ve got but the mental and emotional habit that you’ve got. You know, when you’re in pain you want to fall back on going looking for something to kill the pain. I’ve been taught to deal with it, with emotions, to feel it and it’s, you know, it’s the first time in my life that I know that it’s all right to feel that way. I have never been taught, you know, the things I have is a normal feeling. I’ve never been taught that. You know, I had always thought that, you know, being sad is not a thing you’re supposed to feel. That’s why I would look for drugs, that’s why I would look for a good time. Until this time I’ve learnt so much since I’ve been in and only because you have to do these courses, they left me no choice but I had to learn all this, you know…”[31]

    [31]    Transcript, page 25, line 33 to page 26, line 8.

27. I accept, based on the evidence before the Tribunal, that the Applicant has undertaken several courses while in Immigration Detention. Some of these courses include rehabilitation courses with respect to drugs and alcohol, and anger management. The Applicant told the tribunal that his anger management has improved. He said:

    “Yes, I have been in some confronting situations but now I can actually talk to people, you know, I can actually calm people down and say, ‘Calm down, talk to me’, you know, which before I wouldn’t have. I’ve got a boxing background and I know how to hurt people. Now I actually can say to them, ‘Wait, talk to me’, you know, where before I wouldn’t be able to, you know, and as soon that I feel being angry I start fighting.”[32]

    [32]    Ibid, page 27, lines 3 to 9.

1. I have before me a letter of support from a Ms Davis, who described the Applicant as a kind soul who was always looking out for others. She said he has been very helpful with her two special-needs children, looking after them whenever required. She said she never had any reason to fear for the safety or well-being of her children when they were with the Applicant. I am prepared to accept this letter on face value as it does not seem inherently implausible that the Applicant is capable of being helpful and kind to others. I also have before me a letter of support provided by a Ms Cochrane which includes the following:

   “I…am writing to you today regarding [the Applicant]. I was a single mother for four years until meeting [the Applicant] of two beautiful children aged 7 & 5. My children have never had a father figure until now. Since the time knowing him he has had a massive impact on not only myself but my children’s life’s in the best way possible even though he can’t be here with us in person at the moment he always puts in 100% effort, commitment, and love towards myself and the children…[the Applicant]has shown not just myself but children as well the loving caring heart he has. my son asked me could [the Applicant] please be his daddy, to me that just shows my kids love and care for [the Applicant] just as much as I do. Every day my kids ask when is [the Applicant] coming home and it breaks my heart every time because we just do not know.”[33] [Errors in original]

   [33]    Exhibit A3.

2. The Applicant gave evidence that he met Ms Cochrane around seven months ago, while in Immigration Detention, through Facebook, and that if he is returned to the community they will live together as a couple. Ms Cochrane has only known the Applicant while he has been in a structured environment, and not abusing drugs or alcohol. She has no experience with the Applicant in an unstructured environment. Accordingly, I give her evidence very limited weight.

3. I have before me a letter of support (in email form) by a Ms Mala. Her letter includes the following:

   “…i have had the privilege of knowing [the Applicant] for 15 and a half years. I consider him to be a man of great character, and has earned my respect not only from myself but from my family in Queensland.

   Upon spending time with him, i have come to realize that he has characteristics that are considered to be of great value in this country. I found that he has great work ethics, integrity, and kindness-values that make him a great citizens. As someone who has seen him in his professional and personal environment, i can attest that he will thrive well in this country. He has spent a great amount of time waiting patiently for his application to finally go through, and for him to be able to finally move forward in his life. I have also allowed [the Applicant]to move into my home in Queensland to be close to family and help out with every day care.

   I am very happy to let you know that this person is honest, dependable, and conscientious, not only in the presence of his superiors, but to everyone else, as well. It is a great honour for me to know him, and find it a privilege to be his close friend.”[34]

   [Errors in original]

   [34]    Exhibit A5.

4. Ms Mala gave evidence in the hearing. It became apparent that she has not had a continuing relationship with the Applicant for 15 years, but had a very brief relationship with him 15 years ago and resumed contact with him some months ago. She admitted that she had never observed him in a work environment. She expects that if the Applicant is returned to the community he will live with her and they will be in a relationship. I find Ms Mala’s letter of support to be unreliable. I give it no weight.

5. The Applicant’s participation in rehabilitation course is a promising start. However, it is only a start. The Applicant has unresolved issues with drugs, alcohol and violence, and these interact with each other, e.g. he was intoxicated when he attacked his (then) partner. If the Applicant is returned to the wider community, he will have to manage all these challenges in an unstructured environment. He says he intends to engage in support services and I am satisfied that he would be able to obtain employment, however he has very little in the way of social or familial support in place. What is more, there are two women who expect him to live with them, in a relationship, if he is returned to the community. This would seem to present an immediate stressor that the Applicant will have to deal with.  

6. Following from that point, the Applicant’s offending included several dishonesty offences, and he continues to behave in a dishonest manner. First, he appears to have led Ms Mala to believe that if he is returned to the community he will live with her as her partner, when this is at odds with his evidence to the Tribunal that he intends to live with Ms Cochrane and continue their relationship. Second, as mentioned above, he provided false information to the Department and to the Tribunal.

7. The Applicant told the Tribunal that he never used drugs while incarcerated and I accept this. However, after previous periods of incarceration he returned to drug use and he re‑offended. While he has made some efforts towards rehabilitation while in Immigration Detention, and he says he is prepared to engage support services in the community, his ability to abstain from drugs and alcohol and refrain from offending this time around has not been tested in an unstructured environment.  

8. Taking that into account, and being cognisant that previous intervention by the police and the courts, and warnings about his visa being cancelled, have not stopped the Applicant from re-offending, I consider that there is a moderate to high risk that the Applicant will commit further offences, including violent offences, if he is returned to the wider community.

   Conclusion: Primary Consideration A

9. Primary Consideration A weighs heavily in favour of non-revocation.

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

10. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

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

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

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

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

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

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

    ·any known views of the child.

12. In June 2019 the Applicant made a written request to the Respondent to revoke the mandatory cancellation of his visa. In that request, in the section that asks Applicants to list minor children whose best interests would be affected by the decision, the Applicant nominated his son, Child A. He did not give a date of birth but said Child A was 12 years old and gave the name of Child A’s mother. He did not nominate any other child.

13. In his SFIC, dated 26 June 2020, he nominated Child A and a daughter, Child B, who he said was 16 years old.

14. According to the Applicant, he was with Child A’s mother for the first four years of Child A’s life and he spent time with Child A on a daily basis. After that relationship broke down, the Applicant saw Child A around once every two weeks. Around five years ago, Child A’s mother stopped him from seeing Child A. The Applicant managed to resume contact with Child A but it was on a much less frequent basis. He currently has some telephone contact with Child A. He is not on speaking terms with Child A’s mother, however if he is returned to the community he will try to have a parental relationship with Child A. Child A lives in Brisbane with his mother. She fulfils a parental role and there is every indication that she will continue to do that. Child A’s views are not known.

15. As Child A is currently 12 years old, there is significant potential for the Applicant to make a positive contribution to his life in a parental role. Whether he does so will largely depend on whether he stays out of gaol and how willing Child A’s mother is to facilitate a relationship between Child A and the Applicant. I accept that the Applicant wants a relationship with Child A, and wants to be a positive factor in Child A’s life. Thus far, the Applicant’s desire to be a good parent to Child A has not been enough to keep him from using drugs, abusing alcohol and offending. I do not have sufficient evidence before me to make a finding about whether the Applicant could maintain regular communication with Child A from Tonga. Even if he can, a parent’s physical presence in their child’s life is normally preferable for the child.   

16. I am satisfied that it would be in the best interests of Child A for there to be at least the potential for the Applicant to make a positive contribution in his life and that his physical presence in Australia would create potential for that. Based on this potential, I allocate a modest measure of weight in the Applicant’s favour in relation to Primary Consideration B as to Child A.

17. In the hearing, the Applicant was asked to explain why he had not mentioned Child B in his written request for revocation of the cancellation of his visa. He said he had only recently learned that Child B was his daughter when her mother, Ms Mala, contacted him through Facebook while he was in Immigration Detention. He said when he broke up with Ms Mala he was in gaol and when he got out, she had a boyfriend. He said Child B was born while he was incarcerated. He said he thought Child B was born in 2006 or 2007. When it was put to the Applicant that, if Child B was indeed 15 years old, there was no record of the Applicant being incarcerated around the time she was born. He could not offer an explanation for that. I have considered the possibility that the Applicant was incarcerated under a different name at the time Child B was born, however he did not put forward that possibility, and Ms Mala did not mention visiting him under another name when she gave evidence that she visited him in gaol when she was pregnant (see below).

18. Ms Mala said she met the Applicant in early 2004, and by late March or April she was pregnant. At that time the Applicant was incarcerated, and she told him about her pregnancy when she visited him. This evidence directly contradicts the Applicant’s evidence that he did not know Child B was his child until he was in Immigration Detention.[35]

    [35]    Transcript, page 53, lines 41 to 45.

19. Further, Ms Mala gave evidence that the Applicant’s name is not on the birth certificate because she could not find the Applicant at the time. She did not mention having a boyfriend by the time Child B was born.

20. Child B provided a letter of support in which she said:

    “… My grandparents and my uncles have always talked about how my father is a beautiful soul, strong in heart; never brought his criminal issues around mum nor her family but he always showed love and respect. I am writing this letter because I know my father is not perfect but in my eyes he is everything to me. I am asking to give my father a second chance and to be in my life; so we can celebrate birthdays to come, Fathers Day that I missed without him; Tongan Father day, also I need my dad in my life, Please and begging?”[36] [Errors in original] 

    [36]    Exhibit A4.

21. I have found the evidence given by Ms Mala in her letter of support to be unreliable, and there are discrepancies between her evidence about Child B and the Applicant’s. I do not consider Ms Mala to be a reliable witness. Child B, in her letter, talked about being told positive things about her father and needing him in her life yet she made no mention of any efforts made by her or anyone else to locate him which seems inconsistent. I find her evidence to be implausible.

22. There is no independent or reliable evidence that Child B is the Applicant’s biological child and I am not satisfied that she is. Ms Mala fulfils the parental role for Child B and there is no reason to find that she will not continue to do so. 

23. The Applicant claims that he wants Child B to be his child, and it appears that Child B has been persuaded that the Applicant is her father. The Applicant said they are in frequent contact, and that they have developed a close bond. Yet, I note the Applicant does not know Child B’s year of birth.

24. Child B’s letter indicates that she wants the Applicant in her life although I have found her evidence to be unreliable. Her relationship with him has been brief and limited to electronic communication while he has been in detention. According to the Applicant’s evidence, he would like to live near Child B but he will not be living with Child B and her mother. This is contrary to the expectations of Child B’s mother.

25. Given the brevity of the Applicant’s relationship with Ms Mala, the 15 year period of no‑contact and the relatively brief period in which contact has resumed, I am not satisfied that there is any guarantee or even likelihood that if the Applicant is returned to the community, he and Ms Mala would remain on good terms and that he would be welcome in Child B’s life.      

26. Similar to Child A, I am satisfied that it would be in the best interests of Child B for there to be at least the potential for the Applicant to make a positive contribution in her life, as they both seem to want a parent-child relationship, and that his physical presence in Australia would create potential for that. Based on this potential, I allocate a slight measure of weight in the Applicant’s favour in relation to Primary Consideration B as to Child B.

27. The Applicant does not claim that Ms Cochrane’s children’s best interests are affected by the decision. As stated above, Ms Cochrane has only known the Applicant for a matter of months while he has been in Immigration Detention. The Applicant has no biological or other significant tie to Ms Cochrane’s children. Ms Cochrane currently fulfils the parental role and there is no reason to doubt that she will continue to do that. While her children might want the attention they are currently receiving from the Applicant to continue, whether it would if the Applicant were returned to the community is a matter of speculation, given it depends on the Applicant’s relationship their mother enduring. Consistent with the Applicant not making any claim that the best interests of these children would be affected by the revocation or non-revocation of this visa cancellation, I am satisfied that Primary Consideration B is neutral with respect to these children.   

    Conclusion: Primary Consideration B

28. I am satisfied that it would be in the best interests of Child A and, to a lesser extent, Child B for there to be at least the potential for the Applicant to make a positive contribution in each of their lives, and that his physical presence in Australia would create potential for that. Based on this potential, I allocate a limited measure of weight in the Applicant’s favour in relation to Primary Consideration B.

    PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

29. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

30. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[37]

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

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

    Analysis – Allocation of Weight to this Primary Consideration C

32. In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia when he was 14 years old and he is now 49. He has spent nearly three quarters of his life here;

    ·he committed his first offence approximately three years after moving to Australia;

    ·he has committed numerous violent offences including domestic violence and armed robbery, property offences, dishonesty offences, minor drug offences and offences that tend to frustrate the administration of justice; 

    ·his offending is serious in nature;

    ·intervention by the police and the courts, and warnings about his visa status, has failed on previous occasions to deter him from offending, indicating a lack of respect for the laws that govern the community that he wishes to re-enter;

    ·there is a moderate to high risk that if he is returned to the wider Australian community he will re-offend and that such re-offending will pose a risk of serious harm to individuals and the community; 

    ·if he is deported it would negatively impact Child A and Child B in the manner mentioned above, some of his adult children (described below) and may adversely impact members of the Applicant’s family who are in Australia including his sister who provided a letter of support, and Ms Mala and Ms Cochrane; and

    ·he has held employment and done some voluntary work in the community.

    Conclusion: Primary Consideration C

1. The Applicant has repeatedly breached the trust of the Australian community by committing serious offences, and he has continued to offend despite periods of incarceration and previous warnings that further offending could result in his visa being cancelled. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the Decision under Review.

   OTHER CONSIDERATIONS

2. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

   (a) International non-refoulement obligations

3. The Applicant has not claimed to fear harm if returned to Tonga. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.

   (b) Strength, nature and duration of ties

4. The Applicant has lived in Australia since the age of 14. He commenced offending relatively soon after arriving - approximately three years later. On account of his youth when he relocated he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a) of the Direction.

5. According to the Applicant, he was gainfully employed in the mid-1990s in steel fixing, scaffolding and labouring, and he was employed in the 2000s as a personal trainer. He also claims to have done some volunteer work with his parents and through a gym. I accept that the Applicant has made contributions to the community through gainful employment and voluntary work. These matters add a measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.

6. With respect to paragraph 14.2(1)(b), the Applicant’s immediate family live in Australia. In addition to Child A, he claims to have four adult children in Australia. His eldest, Ms L, lives in Perth and keeps in touch with him. Ms M and Ms N are sisters who live in Brisbane. Ms M is the child who intervened in the domestic violence offence to protect her mother. The Applicant believes that she has tried to contact him but that there is an “order” in place preventing him from contacting her.[38] The Applicant estimates that the last time he spoke with Ms N was two or three months ago. A son, Mr O, has no contact with the Applicant. The Applicant also has many relatives in Australia. He has established some very recent relationships while in Immigration Detention which do not carry as much weight. Two people who appear to have known the Applicant for some time provided letters of support. I am satisfied that the Applicant has significant familial ties, and some social ties, to the Australian community.

   [38]    Transcript, page 50, line 40 to page 51, line 7.

7. I am further satisfied that the Applicant’s immediate family will be adversely impacted by his removal from Australia although there is no reliable evidence that the impact would be significant for any of them. 

8. Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.

   (c) Impact on Australian business interests

9. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.

   (d) Impact on victims

10. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims.  This Other Consideration (d), is therefore neutral.

    (e) Extent of impediments if removed

11. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (f)the non-citizen’s age and health;

    (g)whether there are any substantial language or cultural barriers; and

    (h)any social, medical and/or economic support available to that non-citizen in that country

12. The Applicant is 49 years old and does not claim to have any medical problems although he is missing several teeth which causes him pain when eating as some teeth hit the bare gum opposite them. He said the waiting list for dental work at the detention centre is months long. I will proceed on the basis that if he is returned to Tonga, he will not have had his dental problems treated.  

13. The Applicant does not claim to have any psychological problems, although he has unresolved issues with alcohol and drugs. I do not have any information before me about the availability of drugs and alcohol in Tonga, so I am unable to make any assessment of the risk that the Applicant would resume drug taking or abusing alcohol in Tonga.

14. The Applicant told the Tribunal that he has many relatives living in Tonga although he has not been back to Tonga since he first arrived in Australia. He said his brothers and sisters have been back to Tonga and were in touch with relatives there. He said he thought his relatives in Tonga would be willing to help him although he doubted that they would have the resources to.

15. The Applicant can understand Tongan he and gave evidence that he speaks Tongan with his mother. Having spent the first 14 years of his life there, I am satisfied that the Applicant has reasonably good knowledge of Tongan culture despite having been absent for some 35 years. I am satisfied that the Applicant could update his knowledge of Tongan culture by communicating with his relatives who live in Tonga. I am not satisfied that there would be any significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Tonga.

16. It was contended in the Applicant’s SFIC that he would struggle to maintain a basic level of living standard, that due to his age, manual work would be very hard on him, and that he would not be able to cope financially, spiritually, emotionally or physically. It was further contended that the Applicant would have to fend for himself by growing crops and fishing. He told the Tribunal that he would have to relearn how to grow crops and fish.

17. The Applicant gave evidence that if he were returned to the wider community he could obtain employment as a personal trainer. Accordingly, I do not accept that he lacks the level of fitness required to do manual labour, grow crops or fish. The contention that the Applicant would not cope spiritually or emotionally was not explained, although I am satisfied that he would find it hard to adjust to a different lifestyle in a country that generally has a lower standard of living.

18. It is likely that the Applicant will face some difficulty in re-establishing himself in Tonga as he does not have an existing social or support network there, he will have to secure accommodation, and he will have to find a way to survive financially. However, he has skills in the area of manual labour and personal training, he has relatives in Tonga that he could connect with, and he is open to the idea of growing crops and fishing. I accept that life will be more difficult, his standard of living will be lower, he will not have access to the same level of Government services that he has in Australia and it likely that his dental problems will not be fixed. Considering all of this, I am of the view that this Other Consideration (e) weighs moderately in favour of revocation of the reviewable decision.

    Findings: Other Considerations

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

    (a)international non-refoulement obligations: not relevant;

    (b)strength nature and duration of ties: weighs moderately in favour of revocation;

    (c)impact on Australian business interests: not relevant;

    (d)impact on victims: neutral; and

    (e)extent of impediments if removed: weighs moderately in favour of revocation.

    CONCLUSION

    Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?

20. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration A weighs heavily in favour of non-revocation;

    ·Primary Consideration B weighs in favour of revocation to a limited extent;

    Primary Consideration C weighs heavily in favour of non-revocation; and

    ·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

21. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

22. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Member Bellamy

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

Associate

Dated:  27 July 2020

Hearing:  13 and 14 July 2020

Applicant:  By video

Representative for the Respondent:              Mr Chris Brinley

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-290)	R	-	12 MAR 20
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1-24)	R	1 JUL 20	1 JUL 20
R2	Summonsed Material (pages 1-260)	R	-	1 JUL 20
R3	Respondent’s Supplementary Tender Bundle (67 pages)	R	-	8 JUL 20
A1	Applicant’s Statement of Facts, Issues and Contentions (16 pages)	A	26 JUN 20	26 JUN 20
A2	Letter of support of Ms Davis (one page)	A	6 JUN 20	15 JUN 20
A3	Letter of support of Ms Cochrane	A	undated	30 JUN 20
A4	Letter of support from Applicant’s daughter (one page)	A	13 JUN 20	8 JUL 20
A5	Character reference from Ms Mala (one page)	A	27 JAN 20	8 JUL 20