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

Pau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3385 (14 October 2022)
Division:GENERAL DIVISION
File Number: 2022/6225
Re:Pau Junior Pau
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:14 October 2022
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 22 July 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
...................................[sgd].....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) – Direction No. 90 – aggravated break and enter – stalking – threats to kill – protection of the Australian community – expectations of the Australian community – family breakdown – best interests of children – links to the Australian community – impediments to relocation – offending over short time period and out of character – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth) s 5G, 499, 500, 501, 501CA
CASES
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
14 October 2022
BACKGROUND

Mr Pau (the applicant) was born in Samoa in 1992 and is now 30 years of age.[1] When he was four, his family moved to New Zealand, where he went to primary and high school. In 2012, at the age of twenty, he moved to Australia with his mother, father and sister.
[1] G1, 3.
The family arrived on 26 December 2012.[2] The applicant was employed as a labourer in the concrete industry and worked consistently in that role for more than eight years. He played sport and excelled at rugby league. He has a six year old daughter and a two year old son from his former de facto partner. They met in 2013 and were together for some seven years until they broke up at the end of June 2020.
[2] G14, 86.
The applicant has spent a year in immigration detention, where he remains at the present time. Prior to that he spent some 17 months on remand or serving sentences for offending that occurred between April and June 2020.[3]
[3] One year, 4 months and 21 days, from 18 May 2020, when his bail was revoked, until 8 October 2021, when he was released.
THE APPLICANT’S OFFENDING
On 9 April 2020, the applicant committed a serious criminal offence, which led to his visa being cancelled. He had been drinking and smoking cannabis. Early that morning, now severely inebriated, he walked into what be believed to be his former girlfriend’s house, and entered the bedroom. A sleeping couple were awoken by his presence. They were complete strangers to him. He placed his hands around the male victim’s neck for some seconds and then ran outside, where he stood for a while, then returned to tackle and exchange blows with the victim. They fell into the wall causing some property damage. The victim gained the upper hand and was able to restrain him and calm him down. Mr Pau smelt of liquor. He apologised repeatedly to the victim, saying he thought it was his ex-girlfriend’s house and that she was cheating on him. The victim’s female partner called the police. Mr Pau’s eyes were glassy, he smelt of alcohol, and appeared to have been crying. He was escorted to a police station where his interview was electronically recorded. Mr Pau’s account was not especially coherent. He said he was looking for a man he had played rugby league with some years back, but entered the wrong house. He thought it was his former girlfriend’s house. He had dated her some three years ago for about four months. The man he was looking for had dated the same woman afterwards. Why he wanted to meet this man, and whether it had anything to do with her, was not explained at all. He had no significant prior criminal history and was released on bail. [4]
[4] Sentencing remarks, G10, 60-61.
Less than two months later, on 18 May 2020, he entered his sister-in-law’s backyard at night, peered through her bedroom window, and engaged in various lewd acts including lowering his trousers and masturbating. He does not appear to have made any effort to conceal his presence and he was in view for about 30 seconds. Clearly, he had misjudged the situation. The police were called. He was arrested and came before the court the next day, on 19 May 2020. He was charged with several offences, including performing a sexual act with a person without consent, and peep and pry. It also transpired that he had made multiple telephone calls to the woman and played pornographic sounds to her. His application for bail was refused and he was remanded in custody.[5]
[5] TB2, 20.
On 29 June 2020, while in prison, he made two telephone calls to his partner. According to standard practice, the telephone call was recorded.[6] According to his various statements, and the evidence given to the Tribunal, he heard a male voice in the background. He claims to have heard the unknown male using her pet name. His suspicions were aroused, and this led to an escalation of verbal violence. At some point in the conversation, she told him she was ending the relationship. He said that he hoped he got bail because he was going to kill her.
[6] G18, 123.
On 4 February 2021, the police executed a search warrant to obtain the transcript of the recording.[7] Unfortunately, only a short excerpt of the transcript was provided to the Tribunal, and the absence of the complete transcript was not explained. The applicant pleaded guilty to using a carriage service to threaten to kill, and stalk/intimidate intend fear physical etc harm (domestic). He was convicted and sentenced on 28 May 2021 to a community correction order of 18 months for each offence, running from the date of sentence to 27 November 2022.[8]
[7] G18, 123.
[8] TB4, 54.
On 20 November 2020, he was sentenced on a plea of guilty to six months imprisonment for the non-consensual sexual act and one month imprisonment for the peep and pry.[9] He was also charged with stalk/intimidate (domestic) and using a carriage service to ‘menace, harass or offend’, for which he received community correction orders of 18 months duration, to be served concurrently.[10] He pleaded guilty to all these offences. The court made an order for him to be released on a conditional release order to be of good behaviour for 18 months.[11]
[9] G9, 52, 56.
[10] TB2, 15.
[11] G9, 56.
The applicant remained in custody for the aggravated break and enter, his bail having been revoked. On 4 December 2020, he pleaded guilty in the Penrith Local Court to one count of ‘aggravated break and enter’, and was sentenced in the District Court.
On 28 January 2021, the Katoomba District Court sentenced him to three years imprisonment for the aggravated break and enter, and one year for the assault. The judge found that he was ‘generally remorseful and contrite’.[12] At the time of the offending he was apparently much affected by the death of his grandfather, and had attended a family wake in his honour the day before he committed the offences. The indictment included other ‘back-up’ or related offences arising from the same incident and these were taken into account in sentencing. The fact that he had re-offended while on bail was also taken into account. His three year term of imprisonment ran from 9 July 2020 to 8 July 2023, with a parole eligibility date of 8 October 2021 (15 month non-parole period).[13] The three year sentence triggered the visa cancellation with which this Tribunal is concerned.[14]
[12] G10, 66.
[13] G11, 70.
[14] In calculating the commencement date the learned judge took into account the 2 months and eight days the applicant served in custody on remand in respect of these offences, ie, between 20 November 2020 and 28 January 2021.
MANDATORY VISA CANCELLATION
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ by reason of paragraph 501(7)(c) of the Migration Act 1958 (Cth) (‘the Act’) and therefore fails the character test by reason of paragraph 501(6)(a).
On 17 February 2021, the applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled under subsection 501(3A) of the Act.[15] A delegate of the Minister was satisfied that he did not pass the character test because he was serving a three years sentence, on a full-time basis, in Parklea Correctional Centre in New South Wales.
[15] G3, 19.
It appears that he was released on parole on 8 October 2021 and re-arrested in Parramatta on 22 October 2021 by Australian Border Force officials. He was taken to the Villawood Immigration Detention Centre (VIDC).[16]
[16] TB8, 179, 180.
The applicant applied to the Minister, in accordance with an invitation to do so, to consider whether to revoke the decision to cancel his visa. On 22 July 2022, a delegate of the Minister declined to do so, and this decision was conveyed to him by letter dated 25 July 2022.[17]
[17] G3, 18; G2, 12.
On 1 August 2022, Mr Pau’s then legal representative filed an application on his behalf for review by this Tribunal of the decision not to revoke the cancellation of his visa. This is provided for by paragraph 500(1)(ba) of the Act. The application simply asserts that the delegate failed to find that there was ‘another reason’ why the cancellation decision should be revoked.
The application was heard by teleconference on 29 September 2022. A solicitor from the firm Sparke Helmore, Mr M Sheedy, appeared for the Respondent. The applicant was not legally represented at the hearing but appeared by video link from the VIDC.
FINDING ON THE CHARACTER TEST
Subsection 501CA(4) of the Act provides:
(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.
According to the National Criminal History Check, on 28 January 2021 the applicant was sentenced to three years’ imprisonment for aggravated break and enter.[18] He did not dispute that he fails the character test. Having noted his criminal record, I am satisfied that he fails the character test.
[18] G5, 44.
The sole question for the Tribunal is whether there is ‘another reason’ why the mandatory cancellation should be revoked. For the reasons that follow, I am satisfied that there is such a reason, and therefore set aside the delegate’s decision of 22 July 2022, and substitute a decision revoking the cancellation of his visa.
The Discretion Under Subsection 501CA(4)
In exercising the discretion under subsection 501CA(4), on the basis of paragraph 4(b)(ii), the Tribunal is required by subsection 499(2A) to comply with Direction No. 90 (the Direction).[19]
[19] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The 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 measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-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 types 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 measureable risk of causing physical harm to the Australian community. (emphasis added)
Part 2 of the Direction is entitled Exercising the Direction. There are four primary considerations (paragraph 8), and five ‘other’ considerations (paragraph 9) that must be taken into account ‘where relevant to the decision’. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) the extent of impediments if removed, the impact on victims, and links to the Australian community.
The Direction also contains principles and rules relating to the weighting of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[20]
Primary Considerations
[20] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Protection of the Australian community: PC1
Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) provides that decision-makers should also 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 non-citizen’s conduct to date: paragraph 8.1.1
Paragraph 8.1.1 of the Direction outlines the various factors to which a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending.
The Direction states that certain crimes are considered very seriously by the Australian Government and the Australian community: paragraph 8.1.1(1)(a). For example, violent crimes are viewed very seriously, and crimes of a violent nature against woman are viewed very seriously, regardless of the sentences imposed. Acts of family violence are also viewed very seriously, regardless of whether there is a conviction or sentence imposed.
The applicant’s criminal history is set out in detail in the materials before the Tribunal.[21] In addition to the offences committed in April and May 2020, mentioned above, there are additional matters.
[21] Nationally Coordinated Criminal History: G5, 43.
I mention for completeness that his very first offence in Australia was for driving under the influence, committed on 27 April 2018, some five years after arriving in Australia. He was stopped for erratic driving and was found to be intoxicated. He was also found to have a small amount of cannabis in his possession. He was subsequently convicted on 29 May 2018 in the NSW Local Court for driving with a proscribed content alcohol (PCA) middle range (1st offence), and possession of a prohibited drug. He was fined $750 for the PCA offence and $250 for the possession offence. He was also disqualified from driving for 7 months commencing on 27 April 2018 and ending on 26 November 2018.
I also note that just before coming to Australia in 2012, he was convicted of two minor offences in New Zealand, which he failed to declare on his inbound arrivals card. In a statement dated November 2021, he provided a lengthy explanation for his failure to declare these offences.[22] One of these offences was punished by way of a good behaviour bond, the other by a $250 fine. In the overall assessment of his offending, these minor offences, dealt with very leniently in a foreign jurisdiction when he was 19 years old, do not press heavily upon the Tribunal.
[22] G22, 185.
Assessing the gravity of his criminal record
The offence that triggered the mandatory cancellation (aggravated break and enter) occurred in April 2020 and was dealt with along with related offences on 28 January 2021.
The applicant and various family members have explained the background as follows. He was especially close to his grandfather, who passed away in April 2020. He attended a wake in his honour. Overwhelmed by a sense of loss, he consumed alcohol and drugs. In a state of extreme inebriation, he set upon his misguided mission to seek out the man who had dated his former girlfriend, culminating in the intrusion at approximately 5 am the next morning in the house of complete strangers.
The learned sentencing judge stated:
There do not appear to be any additional factors of aggravation over and above those relied upon in the substantive charge. There can be no doubt that this would have been an extremely distressing incident for the victims, but fortunately Mr Jaya was able to overpower the offender and to calm him down somewhat before police arrived. Clearly, the offender was apologetic and distressed at the time when he realised what he had done.
In terms of the objective seriousness, I find the substantive offence is one falling below the mid-range of objective seriousness. The assault upon the victim whilst he lay in his bed, is a serious example of its type of crime.
That said however, the offending was not well planned, nor particularly well executed. The offender made no attempt to disguise himself. The damage occasioned to the premises, which is the result of a separate charge, was as a result of recklessness rather than intentional damage. It was a break through of an unlocked closed door. There is no evidence that any damage was occasioned to the premises as a result of the break.
…
Whilst this offender is not a young offender as such, he is clearly one who lacked the necessary life skills to live as an independent adult away from family support. He had turned to drugs and alcohol to deal with his grief and his inability to cope with life’s stresses. His intention to remonstrate with a former girlfriend’s male friend is somewhat bizarre, given the time which had elapsed since the end of that relationship and the fact that he was in a new relationship and had children with his new partner. That relationship has now ended because of his offending against his then partner’s sister.
That is cause for concern; that is, that he reoffended whilst on bail, so soon after committing these offences. Those are matters which go to his prospects for reoffending and rehabilitation, not something he is being punished for again or which can in any way increase the seriousness of his prior offending. The only relevance of that post-offending conduct is the impact it has upon his prospects. By the time he committed these offences he was of relatively good character and I have taken that into account and I have extended to him a degree of leniency as a result. These offences do appear to be an aberration on his part.
His convictions prior to the commission of these offences clearly relate to his abuse of alcohol and drugs, consistent with the evidence that he was abusing both drugs and alcohol.
The offender admitted his guilt at the earliest opportunity and I allow him a 25% discount for his pleas. I do find that he is generally remorseful and contrite. I find he has reasonable prospects for rehabilitation. I say reasonable because of his reoffending whilst on bail. However, he has been undertaking courses and has been gainfully employed whilst in custody and those matters do show an ability to undertake rehabilitation and to attempt to reform.
His family is willing to stand by him and to try and keep him on the straight and narrow and normally that too, would go well for his rehabilitation. But unfortunately they were unable to provide the support required at the time he was self-medicating on drugs and alcohol and prevent him from committing not only this serious offence but also the subsequent offences. They, of course, cannot be blamed for the actions of this offender.
He chose to commit these offences of his own volition. Hopefully, with the benefit of supervision, they will be able to encourage him to live a law abiding life once again, free from the abuse of drugs and alcohol and to re-establish a relationship with his children.
The fact that he has employment to return to will also enhance his prospects. The risk of reoffending will only be reduced if the offender adheres to the rehabilitation programs envisaged and abstains from drugs and alcohol, not only as a result of a court order but also of his own volition.
…
Break and enter offences are prevalent and require a significant component of any sentence to be imposed to reflect the need for general deterrence. All too often victims suffer when the sanctity of their homes are violated, often causing them to flee in fear, never to return or to no longer feel safe when their home should be their sanctuary. I suspect a specific deterrence will be adequately addressed by the time he spends in custody.
I find that only sentences full-time custody will suffice despite what I found to be a lower level of objective seriousness of his offending in respect of the substantive offence.
It is acknowledged on his behalf that the s 5 threshold has been crossed. I raised with his counsel the issue special circumstances as no application had been made on his behalf. There will necessarily be at least a partial accumulation of the sentences to be imposed upon that for which he has been sentenced for the unrelated matters. That of itself will justify a finding of special circumstances. I also find that he is someone who would benefit from a longer than normal period of supervision on parole to minimise the risk of relapse and reoffending. Accordingly, I will make a finding of special circumstances and vary the prima facie ratio to allow the offender to spend a longer period of time on parole. He must necessarily serve part of his sentence imposed by the Local Court before commencing to serve his sentences in respect of these matters.[23]
(emphasis added)
[23] G10, 65-68.

In relation to the matters dealt with on 20 November 2020 (the sexual misconduct directed at his sister-in-law), the learned magistrate assessed the objective seriousness of the sexual offence as below mid-range, and the peep and pry at the lower end of the scale.[24] The carriage offences were assessed as of a like nature.
[24] G9, 53.
I also note that according to the applicant, he and his ex-partner started dating around 2013 and their relationship lasted until 29 June 2020.[25] Initially, they lived with his family but, he says, under some pressure from his partner, moved into their own place. When his partner’s sister, partner and children came to live with them, his small family came under increasing pressure. In his various statements, he speaks of being overwhelmed by the challenges of living separately from his mother and father, and being the sole bread-winner of his new family. These dynamics were also commented upon by the sentencing judge on 28 January 2021.
[25] Transcript of Proceedings (29 September 2022) 14.
Unfortunately, the applicant developed feelings for his partner’s sister. He said that they had an affair behind his partner’s back.[26] He has no history of sexual offending, and he appears to have misinterpreted the cues from his partner’s sister.[27] In his police interview, he was deeply remorseful. Before the Tribunal he was both remorseful and understandably embarrassed. I note that his parents were present during the sentencing hearing.
[26] G21, 161.
[27] G9, 55.
With regard to the use of carriage service to make threats to kill, I note his explanation to a Corrective Services staff member, as recounted in a Case Note Report dated 16 April 2021.
Pau confirmed he called [his former partner] from custody, and heard a male voice in the background. Pau stated he was of the belief their relationship was still active and was told it was a delivery driver.
Pau stated he heard the male call his partner by her pet name of [SH] at which time the victim stated she had started a new relationship.
Pau stated he was shocked at the new[s] given they have 2 young children together and held fears for the safety of his children as he did not know who the male was.
Pau stated he was not in the right frame of mind to take in what was happening as he was really shocked another man was in his home.
Pau advised he did not know what he was saying due to his level of anger. He noted that the pair regularly stated they would kill each other when arguing such as when he was out late at night ? he claimed the victim would tell him she would kill him when he got home and that was how they spoke to each other.
Pau stated he did not mean to cause fear to the victim, and after the call ended was feeling upset with himself due to the heated nature of their encounter.
Pau reported he attempted to call the victim the following day to apologise for his outburst however the contact was unsuccessful.
Pau verbalised concerns that the Police Facts did not refer to the final 1:40 of the phone call as he claimed the conversation had changed in tone and was focussed on why someone was in the [sic] his home.
Pau denied yelling at the victim but was angry as he was self conscious that he didn?t [sic] want people around to him [sic] know he was pissed off, and that he did not show his emotions.[28]
[28] TB5, 83.
The Tribunal notes and applies the Direction that crimes of a violent nature against woman are to be viewed very seriously, regardless of the sentences imposed: paragraph 8.1.1(1)(a). This principle applies not only to the offence of aggravated break and enter, where one of the victims was a woman (although not the intended victim of his offending), but also to the threat to kill directed at his former partner. Arguably, it might also extend to the sexual offence, although it is somewhat artificial to treat his offending on this occasion as violent.
In terms of the frequency of offending and the cumulative effect of offending, the various offences occurred over a fairly narrow time frame. Some six years elapsed between his first offending in New Zealand (2012) and his first offending in Australia (2018). A further two years elapsed before the next cluster of offending, which occurred between 9 April and 29 June 2020, which seem to have been triggered by the death of his grandfather.
The Risk to the Australian Community: Paragraph 8.1.2
The Tribunal is required to assess under paragraph 8.1.2 the risk that may be posed by the applicant should he engage in further similar acts, and the likelihood of him doing so. In assessing the risk, the Tribunal is directed to consider explicitly both the nature of the harm, and the risk to the community should the applicant commit further offences.
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The behaviour of the applicant on the occasions described above has been intemperate and irrational. He has violated the physical and psychological well-being of strangers and members of his immediate family.
Paragraph 8.1.2(2)(b): The likelihood of engaging in further criminal or serious conduct.
In assessing the likelihood of the applicant engaging in further criminal acts or other serious conduct, I am required to take into account information and evidence on the risk of re-offending, including evidence of rehabilitation achieved by the time of the decision.
In making an assessment about risk, the Tribunal is required to make an informed judgment taking into account professional assessments and reports.
I note the Community Corrections Report prepared for the sexual offending (peep and pry).[29] The applicant was assessed as a ‘Low-Medium risk of reoffending’ under the LSI-R test,[30] but that this was overridden to ‘Medium’ to take account of an assessment made on 6 November 2020 by a senior psychologist. This report was noted by the sentencing magistrate on 20 November 2020.[31]
[29] G21, 160.
[30] Level of Service Inventory – Revised.
[31] G9, 54.
I also note the comments by the sentencing judge made on 28 January 2021, referred to above. The sentencing judge observed that Mr Pau admitted his guilt at the earliest opportunity and received a 25 percent discount for his pleas. The Court found that he was ‘generally remorseful and contrite’ and had ‘reasonable prospects for rehabilitation’.[32]
[32] G10, 66.
The applicant uttered a threat to kill to his then partner and mother of his children in the telephone call from prison on 29 June 2020. On 11 October 2020, an Apprehended Violence Order was made for her protection by the Local Court for a two year period expiring on 11 October 2022.[33] In these proceedings, she has made a strong request for him to be allowed to remain in Australia. It is apparent that she does not perceive any ongoing risk to herself or her children.
[33] G20, 157.
I also note various references including the very positive report from his former rugby league coach, Mr Peter Cruzado, and a very positive character reference dated 8 March 2021 from his former employer Maria Fragomeli. The Tribunal also has read the applicant’s statement dated 16 August 2022, and various reports relating to his behaviour.
I conclude by finding that his offending in 2020 is serious but out of character. His conduct does not fairly reflect his character or disposition over the past thirty years and has the hallmarks of some kind of break down, fuelled by alcohol and drugs. His conduct was described by the District Court as an ‘aberration’ and ‘bizarre’.
Conclusion on PC1
While PC1 weighs against revocation of the mandatory cancellation, and looking at his entire record, I assess the weight as moderate. I find that PC1 weighs moderately against revocation.
Family Violence: PC2
The Respondent contends that the conduct of the applicant directed at his former partner amounts to family violence. The Direction defines family violence as:
[F]amily violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Neither the Act nor the Direction provides a comprehensive definition of the expression ‘member of a person’s family’. Subsection 5G(2) of the Act includes certain individuals (e.g. a de facto partner) as family members, without limiting who might be a member of a person's family or relative of a person. The Family Law Act 1975 (Cth), contains a statutory definition of family violence, and an extended definition of ‘member of a family’, but there is nothing to suggest that this definition applies to the Act.[34]
[34] See Family Law Act, section 4AB, as amended by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) - Schedule 1.
The Respondent referred to the case of Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 at [122] for the proposition that the concept of family violence should not be narrowly construed. I accept that decision as binding upon the Tribunal. I accept that the Direction applies to de facto relationships.
In relation to the telephone offence and stalking (intimidation) committed on 29 June 2020, I am satisfied that at the time, his former partner was a member of his family. The applicant certainly regarded her as such, which contributed to his anger. His conduct in threatening to kill her is capable of satisfying both elements of the definition of family violence. There is no suggestion that his behaviour considered as a one-off eruption of abuse, coerced or controlled his partner. Quite the contrary. It simply forced her away.
I note that neither of the offences committed on this occasion require proof that the victim was put in fear or actually intimidated. He was in prison at the time. Indeed, no action was taken by the police in response to this matter until seven months later, although I make no inference from this delay.[35]
[35] The warrant to obtain a copy of the recording was not executed until 4 February 2021, although the incident occurred on 29 June 2020:.G18, 123.
Objectively, the applicant’s behaviour on this occasion was certainly capable of amounting to family violence. His then partner was undoubtedly a member of his family for the purposes of the Direction and such a threat, taken at face value, might reasonably be taken to have caused her to be fearful. The absence of a complete transcript of the conversation makes it hard to assess the impact of his threats. He told a corrections staff member that the short summary distorts the nature of the conversation. He said that the conversation returned to a more normal level, belying any threat. If, as he told the Corrections officer, such threats were a common feature of their verbal arguments, it might not be as sinister as a threat coming out of the blue. The Tribunal has not been provided with relevant police reports of the incident. Evidence is lacking that the threat actually caused her to be fearful.
With regard to the offending involving his former sister-in-law on 17 May 2020, such lascivious conduct is capable of amounting to family violence. She was, at the time of the offending, his partner’s sister, and therefore a member of his family. However, there is no evidence before the Tribunal that his behaviour, lewd and sexually distasteful though it was, caused her to be fearful. Neither could it be said that such behaviour, as a one-off incident, did coerce or control her. Indeed, she simply and appropriately called the police. Altogether, the claim of family violence is simply not made out.
Moreover, the Tribunal notes and applies the Direction that crimes of a violent nature against woman are to be viewed very seriously, regardless of the sentences imposed: paragraph 8.1.1(1)(a). This has been taken into account in weighing the gravity of the aggravated break and enter committed in April 2020. The female victim of that incident was not a member of his family.
Conclusion on PC2
There is no evidence of a pattern of violence, let alone family violence, and the Tribunal considers these to be isolated incidents. On the evidence before the Tribunal, I am not satisfied that the applicant engaged in family violence either directed at his former partner, or his former sister-in-law. The evidentiary basis for finding the necessary element of fear is lacking. And even if either of these family members were put in fear by his conduct, I find that PC2 does not weigh heavily against him.
Best interests of minor children in Australia affected by the decision: PC3
I note paragraph 8.3 of the Direction, which states:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. 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);
(b) the extent to which the non-citizen 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;
(c)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;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The applicant has two children of his own, a two year son and a six year old daughter. His daughter was born in 2016.[36] On 18 May 2020, he was remanded in custody. His son was born two months before he was taken into custody. His former partner provided a statement to the Tribunal in support of the applicant.[37] His children currently live with her but are often cared for by his mother. She does not want her children to grow up without a father. She wants the Tribunal to allow him to remain in Australia.
[36] Applicant’s statement: G22, 177, [34].
[37] G16, 104
The undated statement made by his sister (in the form of a Reply to the Respondent’s Statement of Facts Issues and Contentions) outlines the strength of the bond between the applicant and his children. I also note her undated statement outlining the impact of his incarceration on her, and her various health challenges. Both his sister and his former partner said that on most days the children were left with Mr and Mrs Pau senior, his parents. His mother did the housework and looked after the children. His father was in full time employment.
The applicant said that he spoke to the children regularly by telephone when they went to see their grandparents. If removed, he would continue to do so. He had not sought any custody orders or arrangements. He thought that he would be able to financially support them by transferring money, even if removed to New Zealand, assuming he could find work.
There are two other minor children who may be affected by a decision to remove the applicant. His parents adopted two children from Samoa, a twelve year old girl and a ten year old boy. Although they were not related by blood, he feels close to them.
The Respondent submits that he is unlikely to play a positive role in the children’s lives if he continues to use drugs and alcohol and if he continues to offend.[38] I agree.
[38] RSFIC, [38].
The Respondent contends further that this factor weighs only slightly in favour of revocation of the mandatory cancellation decision. I think it weighs somewhat more highly than that. My overall assessment is that his behaviour in 2020 is an aberration. He does not have a propensity for violence, or for family violence. His offending is out of character, and as the judge described it, ‘bizarre’. He seems to have experienced some kind of a breakdown in mid-2020 and succumbed to alcohol, drugs and sexual fantasies.
I think there is sufficient material before the Tribunal to support a positive finding that he has a strong attachment to his children, and an attachment to his adopted siblings. This is supported by the evidence of family members. I find that these minor children and especially his biological children would be seriously and adversely affected by a decision to remove him from Australia, and that it is in their best interests that he be permitted to remain.
I find that PC3 weighs firmly in favour of revocation of the cancellation decision.
The expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
(1)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 to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted 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:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this 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;
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)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.
(emphasis added)
A literal reading of paragraph 8.4 of the Direction suggests that if the offending falls into one of the categories and is therefore taken to raise ‘serious character concerns through conduct’, then the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.

However, the classification of a particular category of offence as serious or very serious does not absolve the Tribunal from the responsibility of determining for itself the weight to be assigned in the specific circumstances of the case.
The Respondent contends, consistently with the Direction, that crimes of a violent nature against women should be regarded as very serious. As noted above, the sentencing judge found the aggravated break and enter offence to fall ‘below the mid-range of objective seriousness’.[39] There is nothing to suggest that the female present was an intended victim of the offending. Nor was any of the violence perpetrated on that occasion directed at her, although no doubt she suffered a psychological trauma. With regard to the sexual misconduct directed at his sister-in-law, the learned magistrate assessed the objective seriousness of the sexual offence as below midrange, and the peep and pry at the lower end of the scale.[40] As to the telecommunication offence committed from inside prison, while this may properly be regarded as very serious, I am troubled that the entire transcript of this exchange has not been provided to the Tribunal, thus making it difficult to assess the gravity of this offending. I note that it was dealt with by way of a community corrections order.
[39] G10, 65.
[40] G9, 53.
It is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against him or her in any particular case varies according to the seriousness of their offending.[41] Taking into account the various assessments made in passing sentence, I find that PC4 weighs firmly but not heavily against him.
[41] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Other Considerations
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
This consideration has no application to this matter.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
As noted above, the applicant has been employed for more than eight years in the concreting industry in Australia and agreed that there was nothing to stop him finding similar work in New Zealand. There is no relevant language barrier. As a Samoan, there may be some cultural barriers given that this is a distinctive minority ethnic culture in New Zealand. But, as Mr Sheedy noted, the applicant has spent more time in New Zealand than in Australia.
In terms of his mental health, I note the letter from Dr Ajay Kumar Wadhera, St Clair Medical Practice, dated 26 March 2021, addressed to the Manager, Corrective Services, which refers to a past history of depression (April 2020), suicidal thoughts (May 2020) and alcohol abuse (May 2020), noting suicidal thoughts after the death of his grandfather. It is however not clear from the evidence how long the doctor had been treating him, and whether the information contained in this letter was provided entirely by the applicant.
Mr Sheedy referred to a file noted dated 11 August 2022 made by the Immigration Health Medical Service (IHMS) which seemed to indicate that there were no mental issues of concern.[42] However, the applicant told the Tribunal that he suffered from depression for a long time and suffered in silence. He was now doing a lot better. On the basis of the material before the Tribunal, there is no basis to find that he is at a high risk of self-harm at the present time. However, relocation to New Zealand will represent a significant challenge to his resilience, and his behaviour in 2020 points to a somewhat fragile personality. His past reliance of drugs and alcohol to self-medicate is a matter of concern.
[42] TB7, 122.
In terms of supports available to him in establishing himself and maintaining basic living standards, the applicant told the Tribunal that he has no family left in New Zealand or Samoa. His relatives are all in Australia, including his two children, his parents and their two adopted children, his sister, grandmother, aunt and uncle and their children. They live in New South Wales, Victoria, and Queensland. His parents and children live in Sydney. I accept that he has a wide family circle in this country and no family left in Samoa or New Zealand.
He has spent a long period of time in New Zealand, including all of his schooling; nevertheless, being removed to a country where he does not have any family support constitutes a notable health risk. I do not discount the loneliness and depression he may experience living without any family contact in New Zealand, especially during his first months of transition.
I am aware that as a returned offender he may be supported by the New Zealand correction authorities, and may be provided with some transitional support for accommodation and so on. The Tribunal was not provided with current information in this regard.
In any event, given the lack of family support available to him in New Zealand, and the loss of physical contact with family in Australia, especially his infant children, sister and parents, I find that OC2 weighs heavily in favour of revocation of the mandatory cancellation.
Impact on victims: OC3
The Direction provides:
(1) Decision-makers must consider the impact of the section 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.
There is no evidence as to the impact on the couple who experienced his unwanted intrusion in the early hours of 9 April 2020. Nor is there any evidence from the applicant’s former sister in law from which one might assess the impact upon her of a decision under section 510CA(4).
In relation to his former partner, the position is different. In these proceedings, the Tribunal has been provided with a written statement in which she asks for him to be allowed to remain in the country, saying that his character as a father shines through ‘with bright colours’. She says that she and her children will be very negatively affected by a decision to remove him from Australia.
I do not think the Tribunal should lightly dismiss the statement from his former partner, who relevantly, was the victim of his last offending. There is no suggestion of any pending reconciliation between them, and her motivation is directed to his role as a father. Based on her written statement, I find that this consideration weighs tentatively in favour of revoking the mandatory cancellation decision. I place it no higher than that, because as noted in relation to the best interest of children, everything will depend on his ability to restrain his drinking and drug use.
Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia: OC4.1
Paragraph 9.4.1 of the Direction states:
(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 arrived in Australia on 26 December 2012.[43] He came with his immediate family and has a large extended family in Australia, including his own children and step-siblings. The Tribunal has been provided with a variety of reports, including from his parents, sister, grandmother, former partner, church leader, sporting coach and former employer. I have read these reports carefully. An objective decision-maker is entitled to treat some of them with scepticism as being somewhat idealistic, but they clearly demonstrate that he has extensive ties to Australia.
[43] G13, 86.
The applicant’s sister presented herself for examination by the Tribunal. It was clear to the Tribunal that the siblings have a very strong bond. She was not examined by the Respondent, but her letters made it clear that she would be severely affected by a decision to remove him. The same may be said of his parents, who provided detailed letters to the Tribunal.
In terms of positive contribution, I note that he had an exemplary employment record, having worked as a concrete worker in excess of eight years, most of the time he has lived in Australia. He appears to have been a most valued employee. Apart from the relatively minor drink driving infraction, he did not ‘drop the ball’ until 2020. His employment connection provides an important element of his link to the Australian community.
I find that that OC4.1 weighs strongly in favour of revocation of the mandatory cancellation.
(ii) Impact on Australian business interests: OC4.2
I find that there is no evidence of any impact on the sort of Australian business interests referred to in the Direction. This consideration has no application.
CONCLUSION
In weighing the primary and other considerations I make the following findings:
Factors in favour of revocation:
·The best interests of minor children in Australia affected by the decision to remove (PC3) (Firmly).
·Impediment to resettlement (OC2) (Heavily);
·Victim impact (OC3) (Lightly);
·Links to the Australian community (OC4.1) (Heavily);
Factors in favour of non-revocation:
·PC1 Safety of the community (Moderately);
·PC2 Family Violence (Lightly but tending to Neutral)
·PC4 Expectations of the community (Firmly but not heavily).
Factors that are not engaged:
·Non-refoulement (OC1)
·Impact on Australian business interests (OC4.2)
Three of the primary considerations weigh against the applicant, but none weigh heavily against him. They are outweighed by the other considerations considered as a whole.
The aberrant nature of his offending stands out. It involves a departure from his normal good behaviour. Whether his behaviour during this period was the result of a pending relationship breakdown, or the effect of the death of a much loved grandfather, is uncertain. His own personality is the key element, especially his tendency to self-medicate with alcohol and drugs. This led to serious offending in 2020 that was out of character. It also led indirectly to a complete breakdown of the relationship with his partner, the mother of his children. It is his blessing that she now adopts a positive attitude towards him. It seems that she wishes to give him a second chance, if not as a partner, then as a separated co-parent. This is a saving grace. Whether he is able to rise to this challenge will depend on his ability to restrain his use of drugs and alcohol. He has a strong family and other carers with a vested interest in his rehabilitation. He was for a long period the sole breadwinner for a large family.
The Tribunal has a primary duty to ensure the protection and safety of the Australian community. The fact that his former partner wishes to give him a second chance is not decisive, although it is relevant. I have formed the view that the community is not at risk from this applicant, who has now experienced the salutary impact of long detention. I have weighed the entirety of his offending, and especially the aggravated break and enter offence, and his sexual misconduct towards his sister-in-law. I am satisfied that there is another reason why the mandatory cancellation should be revoked, even though he fails the character test.
Decision
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 22 July 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked. As a result, the Applicant’s visa is not cancelled.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

....................................[sgd]....................................
Associate
Dated: 14 October 2022

Date of hearing: 29 September 2022

Applicant: Self-represented

Solicitors for the Respondent: Mr M. Sheedy, Solicitor, Sparke Helmore

[2022] AATA 3385

14 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date of hearing:	29 September 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Mr M. Sheedy, Solicitor, Sparke Helmore