Pele and Minister for Home Affairs (Migration)

Pele and Minister for Home Affairs (Migration) [2019] AATA 207 (21 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7142
Re:Letoi Pele
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:21 February 2019
Place:Brisbane

The decision under review is affirmed.
.......................[SGD]................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because the Applicant did not pass the character test and had served a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – decision under review affirmed.
Legislation
Domestic and Family Violence Protection Act 1989 (Qld), s 80
Domestic and Family Violence Protection Act 2012 (Qld), s 177
Drug Misuse Act 1989 (Qld), ss 9, 10
Migration Act 1958 (Cth), ss 499, 501, 501CA
Police Powers and Responsibility Act 2000 (Qld), s 791
Queensland Criminal Code 1899 (Qld), s 469
Regulatory Offences Act 1985 (Qld), s 8
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 February 2019
INTRODUCTION

This matter relates to an application for review filed by Letoi Pele (“the Applicant”) on 4 December 2018. The decision under review is the decision of a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) dated 28 November 2018. The delegate’s decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation[1] of the Applicant’s visa.
[1] Mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a citizen of New Zealand. Movement records indicate that the Applicant has primarily lived in Australia since November 2006 and that he has travelled outside Australia on a relatively frequent basis until his incarceration. For example, he travelled to Fiji in 2010 for two months; to Dubai in 2015 for three days; and significantly, to New Zealand in 2015 for approximately three months.[2] The visa cancelled by the Minister’s delegate was a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”), on which the Applicant entered Australia on 12 November 2006.
[2] Exhibit 3, s501 G Documents, G2, pages 62-63 and 69.
This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the refusal of the Minister to revoke that cancellation.
The Applicant has an extensive criminal history both in Australia and in New Zealand. His criminal history in New Zealand runs from 23 August 1984 until 30 June 1994.[3] His criminal history in Australia is just as extensive, and runs from October 2007 until September 2017.[4] For the sake of completeness, I note the Applicant has a quite extensive traffic history in Queensland involving some 61 instances of his conduct on public roads coming under the scrutiny of lawful authority.[5]
[3] Ibid, G2, page 68.
[4] Ibid, G5, pages 139-142.
[5] Ibid, G5, pages 143-148.
The Applicant’s criminal history in this country is adequately summarised in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”).[6] He has been convicted of numerous offences for which he has been fined, warned, ordered to pay restitution, and sentenced to community service or probation orders or imprisonment. Most notably, the Applicant has been convicted and sentenced to terms of imprisonment for the following:
·26 January 2009 – Southport Magistrates Court – offence of wilful damage; breach of a domestic violence order – sentenced to 3 months imprisonment;
·16 October 2012 – Cleveland Magistrates Court – offence of breaching a domestic violence order; wilful damage to property without consent and thereby causing loss of $250 or less; and breach of bail – sentenced to 4 months imprisonment;
·31 March 2016 – Cleveland Magistrates Court – offence of contravention of domestic violence order; possession of dangerous drugs; and contravention of a lawful direction or requirement – sentenced to 3 months imprisonment;
·31 January 2017 – Cleveland Magistrates Court – offence of two charges of contravention of domestic violence order (aggravated offence) – sentenced to 5 months imprisonment;
·12 September 2017 – Beenleigh Magistrates Court – offence of possession of dangerous drugs; possession of utensils or pipes that have been used for the consumption of dangerous drugs (sentenced to 6 months imprisonment); and three counts of contravention of a domestic violence order (sentenced to 12 months imprisonment) - sentenced to a total of 19 months imprisonment to be served concurrently.
[6] See Exhibit 4, Respondent's Statement of Facts, Issues and Contentions (“SFIC”), paragraph [3], pages 2-4.
On 12 October 2017 the Department notified him of the cancelation of his visa under section 501(3A) of the Act.
On 19 October 2017, the Department acknowledged receipt of the Applicant’s representations about the possible revocation of the decision to cancel his visa.
On 28 November 2018, the Minister’s delegate made the decision under review, not to revoke the mandatory cancellation of the Applicant’s visa. This was hand delivered to the Applicant on 29 November 2018.
On 4 December 2018 the Applicant applied to this Tribunal for review of that decision.
ISSUES
The refusal to revoke the mandatory cancellation was made on two grounds. I must consider and address both of the following issues:
(i)whether the Applicant passes the “Character Test” as defined in section 501(6) of the Act; and
(ii)whether, there is another reason why the cancellation decision should be revoked, having regard to the considerations in Ministerial Direction No 65. (i.e. should the discretion appearing in section 501CA(4) of the Act be exercised anyway?)
I am satisfied that the Applicant does not pass the character test in section 501(6) of the Act. I note that at the hearing, the Applicant did not dispute his criminal history and, more particularly, did not dispute the reality that he had been sentenced to a term of imprisonment of 12 months of more.
The only substantive issue arising at the hearing was whether there was another reason why the discretion in section 501CA(4) should be exercised to revoke the mandatory visa cancellation decision.
I consider that the Minister’s delegate correctly exercised the discretion in section 501CA(4) of the Act to not revoke the mandatory visa cancellation. My reasons now follow.
ISSUE 1: THE CHARACTER TEST
It is immediately clear to me from the material filed in this matter that the Applicant does not pass the character test. For the sake of completeness, I will still address that issue.
At the hearing, I confirmed that the parties agree about the nature and extent of the Applicant’s offending. As mentioned in paragraph 6 above, the Applicant has an extensive history of offending which is adequately summarised in the Respondent’s SFIC and in the National Police Certificate.[7] This was accompanied by an appropriately stated concession by the applicant at the hearing that he was “not very proud of my past history”, which he regarded as “disgraceful.” It was clear to me that his primary focus was on a favourable application of the above mentioned discretion such that he implored the Tribunal to “have love in your heart on behalf of my families [sic] lives here in Australia for your great consideration of giving me back my visa on humanitarian ground [sic].”[8]
[7] Exhibit 3, Section 501G Documents, G2, pages 21-25.
[8] Exhibit 3, Section 501G Documents, G2, page 78.
Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is section 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record” as defined in section 501(7). In section 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.
Having regard to his criminal history outlined above, it is clear the Applicant has been sentenced to a term of imprisonment of 12 months or more as he was sentenced to 12 months imprisonment on 12 September 2017 for the contravention of a domestic violence order.
The Applicant therefore has a substantial criminal history within the meaning of subsection 501(7)(c) of the Act, such that he does not pass the character test.
I must therefore move on to the next question: whether there is another reason why the discretion under section 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.
ISSUE 2: HOW SHOULD THE DISCRETION IN SECTION 501CA(4) BE EXERCISED?
The legislative framework
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound in accordance with section 499(2A) to comply with any directions made under the Act. In this case Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
“…a decision maker 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.”[9]
[9] Direction No 65, paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(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.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations 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.
The Direction also sets out at paragraph 6.3 a number of principles that should be taken into account when assessing the above considerations. I note that these principles have been accurately cited at paragraph [12] of the Respondent’s SFIC.[10]
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct.
[10] Exhibit 4, Respondent’s SFIC, page 6, paragraph [12].
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further 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.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 13.1.1 of the Direction stipulates certain factors that decision makers must take into account when assessing the nature and seriousness of an Applicant’s conduct. The relevant factors for present purposes comprise:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
(c)The sentence(s) imposed by the court for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
…
Having regard to the provisions of subparagraph (a) of paragraph 13.1.1(1) of the Direction, it can be noted that the Applicant’s history of offending contains numerous convictions for serious criminal offences since 2007. The offending involves relatively unremarkable offences such as contravening a direction or requirement of lawful authority and the possession of utensils or other implements used in the consumption of illicit substances. Concerningly, the offending has a demonstrably darker and more serious side involving repeated breaches and contraventions of domestic violence orders together with the possession of dangerous drugs.
The reference to “violent… crimes” in this subparagraph (a) must surely involve violence committed in a domestic setting, committed as it was against vulnerable parties. The Applicant’s history also includes violence towards those charged with maintaining the rule of law in our community. For example, on 1 July 2010, the Applicant was convicted of assaulting or obstructing a police officer in the course of his/her duty. Although not expressly violent per se, the Applicant’s conduct relating to offensive and disorderly behaviour in a commercial airliner, for which he was convicted and fined on 8 April 2011, can only be regarded as violent in nature. If it was not so, then it is likely his behaviour would not otherwise have come to their attention.
Having regard to the totality of the Applicant’s offending history, it seems clear that while violence cannot be said to be its predominant theme, it is a history that nevertheless has a virtually automatic “default option” back into the realm of violence. As such, while this subparagraph (a) does not purport to limit the range of offences that may be considered serious, I am satisfied that the level and scope of violent offending apparent from the Applicant’s criminal history is such as to render the nature and seriousness of his conduct as “very serious.”
Subparagraph (c) of paragraph 13.1.1(1) of the Direction concerns itself with a review of the sentence(s) imposed by the courts for any crime or crimes committed by an Applicant. It is beyond argument that the imposition of a custodial term is usually regarded as the highest level of a sentencing option available to a sentencing judicial officer. Again, the Applicant’s criminal history does him no favours. His sentencing record commences in October 2007 and has a final Court date of 12 September 2017. The very early phases (2007-2009) of his criminal offending saw him receive the relative leniency of penalties involving probation, the noting of a charge on his Police Record but that no conviction be recorded and being given a reasonable time to pay any fines imposed on him.
However, the disconcerting aspect of the Applicant’s criminal history with regard to this subparagraph (b) is that as early as January 2009, he received a custodial term of imprisonment of three months for the not insignificant offences of wilful damage[11]and breach of a domestic violence order[12]. On 16 October 2012, he received the benefit of a further probationary order for 18 months for wilful damage without consent and thereby caused a loss of $250 or less[13]. The Applicant was also sentenced, on 16 October 2012, to a term of imprisonment for four months for a further breach of a domestic violence order.[14] This term of imprisonment was ordered by the sentencing magistrate to be suspended for an operative term of 12 months.
[11] Queensland Criminal Code 1899 (Qld), s 469
[12] Domestic and Family Violence Protection Act 1989 (Qld), s 80(1)(c).
[13] Regulatory Offences Act 1985 (Qld), s 8.
[14] Domestic and Family Violence Protection Act 1989 (Qld), s 80(1)(a).
Four years later, on 31 March 2016, the Applicant received (1) a three month custodial term for further contraventions of a domestic violence order[15] (suspended for an operative period of 18 months); (2) a probationary order for 18 months upon a charge of possession of dangerous drugs[16]; and (3) a fine of $200 for refusing to follow a direction or requirement of lawful authority[17]. There followed the imposition of a further custodial term on 31 January 2017 (for domestic violence offending – five months in custody[18]). The Applicant’s offending culminated on 12 September 2017. On that day, the Beenleigh Magistrate’s Court imposed these sentences comprising a total custodial period of 19 months:
-Contravention of a domestic violence order[19] – six months imprisonment;
-Further contravention (on a separate date) of a domestic violence order[20] – 12 months imprisonment;
-Possession of dangerous drugs and drug related utensils[21] – one month imprisonment.
[15] Domestic and Family Violence Protection Act 2012 (Qld), s 177(2)(a).
[16] Drug Misuse Act 1989 (Qld), s 9.
[17] Police Powers and Responsibility Act 2000 (Qld), s 791(2).
[18] Domestic and Family Violence Protection Act 2012 (Qld), s 177(2)(a),(e).
[19] Domestic and Family Violence Protection Act 2012 (Qld), s 177(2)(b).
[20] Ibid.
[21] Drug Misuse Act 1989 (Qld), ss 9, 10(2)(b).
It is thus clear that the sentences imposed by the courts for the offending of the Applicant are strongly indicative of the very serious nature of his offending. As mentioned, the sentencing judicial officers have sought to be reasonable with the Applicant in terms of the sentences they have imposed. This is obvious from a longitudinal review of his offending history. But that kind approach has obviously not worked. The sentences quickly leave the realm of non-custodial and supervisory sentences and devolved into the imposition of custodial terms as quickly as two years into his offending history. Accordingly, this subparagraph (c) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s offending is of a very serious nature.
Subparagraph (d) of Primary Consideration 13.1.1(1) of the Direction directs a decision maker to an examination of the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. An initial observation is this: the Applicant’s offending is, if nothing else, very consistent. This is to describe the behaviour in the most flattering way. Viewed more objectively, the conduct is not abating and its trend of increasing seriousness is reflected in the increasing severity of sentences – primarily the length of custodial sentences – imposed on him.
The Applicant arrived in Australia on 12 November 2006. His propensity to offend saw him being sentenced by lawful authority barely ten months after his arrival here. On 15 October 2007, the Applicant was sentenced to a term of probation for a period of 12 months for respective charges of wilful damage and the breach of a domestic violence order. Those themes in his offending have been augmented by a demonstrated refusal to respect and comply with lawful authority. The offending has also involved multiple convictions for the possession of illicit substances.

Although there was a relative pause in the offending between October 2012 and March/April 2016, the Applicant’s resumption of offending has no other flavour than one of increasing seriousness, especially when one reviews his conduct and the significantly more serious sentences he received for respective sentencing episodes on 31 March 2016, 31 January 2017 and 12 September 2017. Each of those sentencing dates involved the imposition of a custodial term(s). In my view, the Applicant’s history of offending has both consistent and sustained. Its frequency and trend of increasing seriousness undoubtedly both point to the very serious nature of the Applicant’s criminal offending to date.
Subparagraph (e) of paragraph 13.1.1(1) of the Direction refers a decision maker to the cumulative effect of the Applicant’s repeated offending and whether it assists to gauge the nature and seriousness of an Applicant’s conduct. The Applicant appears to lack a proper comprehension of the scope and effect of the lawful authority behind orders that are imposed on him as well as the lawful authority inherent in duly appointed law enforcement officers to enforce the laws governing the Australian community to which the Applicant seeks re-admission.
This reality has not been lost on those sentencing the Applicant. At his sentencing hearing before the Beenleigh Magistrate’s Court on 12 September 2017, Stipendiary Magistrate Shephard said this to the Applicant:
“The offences are aggravated when they are considered against your criminal history. You have got numerous convictions there for contravening domestic violence orders, and in particular, this – the offences occurred whilst you were on a suspended sentence for contravention of a domestic violence order, and the March contravention occurred whilst you were on Court-ordered parole for two offences of contravening the domestic violence order.” [22]
[22] Exhibit 3, S 501G Documents, G2, page 32, lines 22-27.
One can sense the virtual exasperation and feeling within the sentencing Magistrate of being at the end of his/her tether with regard to the Applicant’s offending. It was pointed out to the Applicant that it is high time that he got his propensity to offend into order because:
“… it is vital that persons subject to those [domestic violence] orders understand that they need to comply with the conditions of the order, and if they do not, there will be consequences.”[23]
[23] Ibid.
The ‘consequences’ visited upon the Applicant are self-evident when one has regard to the cumulative length of the custodial term arising from the sentencing episode on 12 September 2017. The length of that term is 19 months imprisonment. Prior to that, the longest custodial term imposed on the Applicant for a singular or multiple offences was five months. Thus, the 19 month custodial term imposed on 12 September 2017 represents a custodial period almost four times the longest custodial term that had been previously imposed on the Applicant.
There seems to be an underlying theme of issues and difficulties within this Applicant relating to (1) anger management and self-control, particularly in a domestic environment; (2) illicit substances and perhaps alcohol, as well. His offending has caused him to (1) fail to respect and observe lawful authority; (2) fail to respect and observe the property rights of others as can be seen by his multiple convictions for wilful damage and; (3) fail to respect and observe the personal rights of others, as can be seen from his repeated and ever-increasingly serious domestic violence behaviour. It is notable, that the sentencing courts, although armed with the knowledge that terms of imprisonment are usually regarded as the last resort in the sentencing hierarchy, nevertheless felt compelled to impose a custodial term(s).
There is no escaping the seriousness of his criminal history. We are talking about – in custodial sentencing time for his individual offences - a total period something in the order of 34 months or approximately three years of custodial time. I appreciate some of the custodial sentences were ordered to be served concurrently or otherwise suspended. But that does not assist the Tribunal in assessing this Applicant’s conduct. The fact the offences were committed in the first place and subsequently attracted a sentence of custodial time is what must be considered. How the sentencing courts decide to impose or apportion that custodial time is a matter for those courts. The Tribunal’s task for present purposes is to look at each individual offence, how it was punished and how it impacted on the rights of other people in the community.
A further and perhaps more forensic examination of his criminal history reveals the sentencing court(s) have tried to ameliorate the harshness and sheer disruption that custodial terms have on any offender’s life by (1) on occasion, suspending those terms, (2) making certain of the terms concurrent with each other, (3) putting aside the option of custodial time in favour of more remedial forms of retribution such as the imposition of a fine(s) with reasonable time to pay and/or the referral of those fines to state-based entities dealing with the recovery of those fines.
When having regard to the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly, amongst those factors for present purposes are (a) the principle that violent and/or sexual crimes are viewed very seriously; … (c) the sentence imposed by the courts for a crime or crimes; (d) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; (e) the cumulative effect of repeated offending.
Having regard to my findings in relation to these factors, I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality and consistently serious nature of the Applicant’s offending can only be viewed very seriously in terms of its nature and overall impact on the community.
(b) The Risk to the Australian Community should the Applicant continue to commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) of the Direction stipulates that when assessing whether a non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This paragraph goes on to say that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending …
The Nature of Potential Future Harm
The nature of potential future harm that the Applicant may cause is, to my mind, best gauged by the offences he has committed in the past. Stated succinctly, his criminal history reveals:
-Three offences of wilful damage to property and one offence of receiving stolen property (or property fraudulently obtained);
-Six offences involving a refusal to respect and/or follow lawful authority, including his extraordinary conduct involving offensive and disorderly behaviour in a commercial jetliner;
-At least nine offences involving the breach of a domestic violence order;
-At least five offences involving the possession of dangerous drugs and/or the utensils involved in the consumption of those drugs.
This offending is demonstrative of several things. First, the Applicant seems to have no hesitation about refusing to follow a lawful direction. Second, he seems to lack the necessary self-control so as to avoid physical violence in a domestic context involving the imposition of a domestic violence order. This lack of self-modulation and control also seems apparent in a more social context, such as on a commercial aeroplane flight. Third, while there is no suggestion of commerciality behind his drug offending, it is clear that the Applicant is not – putting it at its highest – averse to the ingestion of illicit substances as part of his regime of dealing with life’s demands.
I have described the dramatically increasing level of sentencing regimes that have been imposed on him throughout his offending history to date. The notion of being removed from the community and placed into criminal custody has abjectly failed to deter the Applicant from re-offending. There are five individual sentencing episodes involving the imposition of a term of imprisonment apparent in his history. Yet, he has continued to offend and to do so at a level of escalating seriousness.
His refusal to follow lawful authority has the additional and quite concerning dimension of having a willingness to re-offend even in circumstances where he was the subject of either suspended prison sentences in the form of court ordered parole or wholly suspended sentences, and while existing domestic violence orders were in place. Thus, a refusal to comply with the immediacy of a directly imposed oral direction from say, a police officer ‘on the beat’ is one thing. It is to my mind quite another thing – and quite a more serious thing – for the Applicant to re-offend after he has earlier been dealt with by lawful authority that had imposed orders/sentences upon him which were still current and effective at the time he re-offended.
There is, to my mind, clear consistency in the Applicant’s offending in terms of its escalating severity and his refusal to submit to lawful authority. The Applicant’s criminal history is suggestive of an overall demeanour oriented towards him getting his own way – be it in a domestic or more general context - and trying to make sure nothing obscures or otherwise gets in the way of what he wants to achieve. Despite earlier warnings from sentencing judicial officers in the form of non-custodial sentences, and despite his mature age[24] throughout the totality of his offending, he has continued to offend.
[24] The Applicant was aged 47 years at the time of his first Court Date in this country (15 October 2007) and was aged 57 years by the time of his most recent Court Date (21 November 2017).
Having regard to the nature of this past conduct, should he reoffend in a similar manner, especially in a domestic context, I am of the view that he would pose a very significant risk to individuals in the Australian community. His offending against both the personal and property rights of others, and his persistent involvement in drug offending – if repeated and if allowed to further escalate – could result in members of the Australian community suffering anything from financial loss, serious physical and/or psychological injuries to, conceivably, death.
Though I recognise that the Applicant contends he poses no future risk of harm and that he wants to return to his family and re-define his life, this contention is unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is very significant.
Likelihood of engaging in further criminal or other serious conduct
This is a predictive exercise and involves an assessment of the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This predictive exercise is, for present purposes, best informed by an examination of the factors indicating a propensity in the Applicant to offend. I have earlier described the lengthy, consistent and persistent nature of his offending history. His propensity to offend can clearly be noted from a longitudinal view of that history.
It seems, however, that the Applicant’s propensity to offend is not bound by the above mentioned themes apparent in his criminal history. He also has little or no compulsion with dealing in a less than honest way with the immigration authorities. There are four incoming passenger cards in the G Documents material. They relate to the specific dates of 12 October 2006, 2 February 2011, 23 August 2015 and 19 September 2015.[25] Put simply, the first of those incoming passenger cards refers to the Applicant’s arrival in Australia from New Zealand. In response to the question “Do you have any criminal conviction/s?” he responded with “No.” This response was given despite the fact that the Applicant has an almost ten year history of offending in New Zealand dating from January 1985 until June 1994.
[25] Exhibit 3, S 501G Documents, G2, pages 69-72.
The remaining three passenger cards post-date his arrival in this country and, indeed, post-date his offending history in this country. On each of those three incoming passenger cards, when asked the question “Do you have any criminal conviction/s?” He responded with “No.” The totality of his conduct with regard to these incoming passenger cards does not only endorse a finding of a refusal to respect and follow lawful authority. It also, to my mind, endorses a finding that this Applicant will readily resort to less than lawful conduct to achieve a stated objective.
The Applicant also has a further dimension to his pattern of offending. His traffic history in this country during the period 21 March 2008 to 25 August 2016 has seen him commit something in the order of 58 individual traffic offences. He seems to have little or no compunction to operating a motor vehicle in virtually any way he seems fit. Of greater concern is the presence of repeated offences for driving an uninsured vehicle (three offences), plus disqualified/unlicensed driving (four offences), plus driving a motor vehicle while under the influence of alcohol and over the lawful blood alcohol limit (three offences). This theme of his offending points to both a lack of respect for lawful authority governing the operation of motor vehicles on Australian roads. It also betrays to my mind, two further things. First, a lack of insight into the perilous consequences on the community were he to be involved in a serious motor vehicle collision while driving an uninsured vehicle. Second, the presence of driving a motor vehicle while under the influence of alcohol points to unresolved issues with his management and consumption of alcohol in his life.
The other dimension to the Applicant’s offending history relates to his history in New Zealand.[26] As mentioned, it runs from January 1985 until June 1994. Concerningly, it contains all too familiar themes that are evident in his Australian offending history including, but not limited to, refusal to comply with lawful authority and, perhaps, most concerningly of all, two offences involving “common assault” that seem to have been committed in a “domestic” context, one in 1989 and one in 1993. The Applicant’s traffic history in New Zealand is just as unimpressive as it is in Australia, containing two convictions for driving while disqualified, two convictions for operating a vehicle carelessly, and two convictions for driving under the influence of alcohol.
[26] Ibid, G2, page 68.
His offending in New Zealand seems to have been largely a prelude to his offending in Australia. If his propensity to offend migrated with him from New Zealand to Australia, I am hard-pressed to accept that his further offending history will not “migrate” with him from his current situation in immigration detention were he to be released back into the Australian community. Accordingly, I think the Applicant and the demonstrated nature of his repeated and consistent offending, points to the reality that he is quite likely to reoffend were he to be returned to the Australian community.
The Applicant contends that he is not likely to continue to offend or otherwise engage in serious conduct because he has changed. He says he is remorseful, that he has changed his ways and that the version of him represented by the criminal history no longer exists. He speaks of taking steps to rehabilitate himself but in the absence of any convincing and forensic psychiatric examination and report, one has difficulty in being convinced that there is some kind of underlying psychiatric rationale behind a pattern of offending – indeed quite serious offending – that has run for over 10 years in Australia and another 10 in New Zealand.
Whilst I recognise that the Applicant says that the spectre of deportation will have a lasting impact on his behaviour, I do not consider this sufficient ground for finding that he is not likely to reoffend. He speaks of not having any factors “whatsoever”[27] that predispose him to offending. Such a contention is simply not consistent with his history. Any semblance of rehabilitation or other expert review of any issues predisposing him to offend can be found in his statement that he has “…been having healthy discussions and session [sic] with the Chaplain in Jail.”[28]
[27] Ibid, G2, page 51.
[28] Ibid.
I have had regard to the various letters of support tendered by the Applicant at the hearing. One is from his brother’s daughter/the Applicant’s niece.[29] She says these things in her letter of support:
“I am writing in hope that this would aid him in receiving his visa to remain in Australia.
… Our family would be more than happy to aid him in getting all the help and resources he needs to abide by the law and follow all guidelines set by the Australian government…
…”[30]
[29] Exhibit 2, Letter of Support from Terani Ifi, dated 4 January 2019.
[30] Ibid.
There is no discussion or recognition of the Applicant’s offending history in this letter of support. Similarly, there is no acknowledgement that the Applicant may have, in the past, done the wrong thing or otherwise contravened the laws of either Australia or New Zealand. Further, the author of this letter of support did not give evidence at the hearing.
The Applicant’s former partner, Ms Luisa Iva O’Brien, also provided a letter of support.[31] She also gave oral evidence at the hearing. She speaks of these things:
“Mr Pele and I have been in a relationship for ten years now and have had many challenges, of late, resulting in the last three years, of chaos. Please forgive us lacking much in discipline.
We have been separated 2.5 years now (since Mr Pele’s incarceration) and we are very remorseful for our errors.
…”[32]
[31] Exhibit 1, Letter of Support from Luisa Iva O’Brien, dated 8 January 2019.
[32] Ibid.
During her oral evidence, Ms O’Brien sought to ameliorate and explain the Applicant’s domestic violence offending history. The essence of her evidence seemed to be that much of the tension and/or causative factors giving rise to his offending in a domestic violence context arose from her apparent lack of attention towards him for a considerable part of their domestic relationship. According to her evidence, the reason for this lack of attention arose from certain “investigations” she was conducting into, according to her, “high level corruption” issues involving legal, law enforcement and/or other institutions either here or in New Zealand. She says that this “investigation” consumed so much of her time that she did not have much time left over for her relationship with the Applicant.

It is for this reason, according to Ms O’Brien, that the Applicant fell into his offending ways, specifically, his offending in relation to domestic violence. This evidence goes nowhere for two principle reasons. First, well intended though it may be, this evidence does not explain anything about the factors behind the Applicant’s offending. The reality of his domestic violence history is that repeated domestic violence orders were made and those orders were repeatedly breached. The notable thing about Ms O’Brien’s evidence in this regard is that most, if not all, of the domestic violence orders were made for her domestic protection. Second, her evidence about “investigating” asserted institutional corruption either here or in New Zealand is difficult to both comprehend and easy to dismiss because when pressed about whether there had been any interest or involvement by police or other regulatory authorities in Australia and/or New Zealand about whatever it was she was “investigating,” she said “No.”
There are four key characteristics of the Applicant’s criminal history and conduct to date that further point towards the likelihood of his reoffending.
First, as briefly mentioned above, his offending has continued over a long period of time (about 10 years in this country and 10 years in New Zealand), at fairly consistent, indeed increasing, levels of seriousness.
Second, in addition to his offending, the Applicant’s history of a refusal to accept and respect lawful authority is, to my mind, of particular concern. Such offending, involves, to my mind, a disingenuous element because the Applicant speaks of wanting to be a changed man were he to be released back into the community, yet has a history that repeatedly demonstrates he does not respect the lawful authority that governs that community. That element, when it appears in an Applicant’s history, is, to my mind, indicative of a likelihood of an Applicant reoffending. This is because the offender often does not fear retribution by lawful authority for his offending. In those circumstances the risk of reoffending is higher.
Third, it should be noted that the Applicant talks about taking positive steps to change his life and to deal with any of the factors that have caused him to offend. The difficulty with that contention is that, apart from some discussions he may have had with a Chaplain in either/or criminal custody or immigration detention, it is a very long way from independent and expertly provided evidence identifying the factors predisposing him to re-offend and otherwise confirming that those factors are under some kind of remedial control.
Finally, the Applicant sought to either downplay or minimise the circumstances of his past offending. The essence of his evidence at the hearing was to convince the Tribunal to exercise its discretion on the basis of “compassion” and some kind of heart-felt leniency towards the history of what he had done. Such a submission, although capable of being understood, runs a very distant second place behind an application of the factors appearing in Direction 65.
I find this such a contention concerning because it indicates the Applicant either does not take responsibility for, or otherwise seeks to avoid the consequences of, his previous offending. I consider this behaviour illustrates the Applicant has a still flawed ability to distinguish right from wrong. This again increases the likelihood of reoffending.
Based upon the totality of the evidence around the likelihood of the Applicant re-offending, I concur with the Respondent’s contention that there is a moderate to high risk that he would re-offend in the future. There is a clear lack of insight into what he has done wrong in the past. His offending cannot be attributed to the ways of errant or misguided youth. His offending occurred as a quite mature man in his middle age. He has failed to be deterred from further offending via the sentences imposed upon him thus far. It is therefore correct to assert there is a moderate to high risk that he will re-offend in future.
I find that the nature and seriousness of the Applicant’s criminal offending to date, taking into account the factors at paragraph 13.1.1(1) of the Direction to be very serious. I find, pursuant to paragraph 13.1.2(a) of the Direction, that the nature of harm to individuals or the Australian community were he to engage in further criminal or other serious conduct in future to have the potential of being very significant. I find, pursuant to paragraph 13.1.2(b) of the Direction, that there is a moderate to high risk that the Applicant would re-offend in future.
In consideration of the above factors, I determine that Primary Consideration A weighs heavily in favour of the Applicant’s visa remaining cancelled.
Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision
Paragraph 13.2(1) of the Direction compels decision-makers to determine whether revocation is, or is not, in the best interests of any children who may be affected by the cancellation of an 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 the age of 18 years 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.
The Applicant has 16 children to two different women. Those children are variously aged between 10 and 35 years. Those children comprise five minors, including one biological daughter from a previous relationship (a twelve year old), and four step-children from another domestic relationship (aged 15, 14, 13, 13, respectively). The Applicant speaks of having a:
“…very healthy relationship with all the children and they respect me very [sic] because they all know and see the love that me and their mother have, and these are the family values that me and my Partner pass it down [sic] to our children because it was passed down [sic] by our parents and grandparents that is what us Island people grew up on Family Values and cultures. It is very important in our lives.”[33]
[33] Exhibit 3, S 501 G Documents, G2, page 49.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/children.
The state and nature of the relationship between the Applicant and the five minor children under the age of 18 years seems unclear and opaque. On the one hand, the Applicant speaks of a very healthy relationship with all of his children and that they respect him because of the love they see between him and his partner. One wonders about the weight and veracity of that evidence in circumstances where (1) there is next to no evidence about what sort of role he has played in the lives of those infant children thus far, and (2) the partner’s evidence to the effect that the relationship between she and him has been over for “2.5 years”. The further point is that the Applicant has effectively been out of the lives of these five minor children for the best part of the last two - two and a half years and, as a result, there has been limited meaningful contact between him and them.
Given the less than clear nature of the evidence with regard to the nature and duration of the Applicant’s relationship between him and the minor children, it is difficult to ascertain the level of weight capable of allocation to this factor (a). Be that as it may, there seems to be some measure of duration in his relationship with the five infant children and, accordingly, I am of the view that this factor (a) very slightly militates in favour of a finding that it is in the best interests of those infant children that the Applicant’s visa status be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction points a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Apart from the Applicant’s own evidence, there is no expert and independent evidence before the Tribunal analysing (1) the role, if any, played by the Applicant in the lives of the children thus far and (2) any adverse impact on the minor children were the Applicant be compelled to return to New Zealand.
Even in the absence of any such report, it is reasonable to conclude that it is more likely than not that the Applicant will play at least some measure of a positive role in the lives of the infant children, especially given the length of time until each of those infant children attain the age of 18 years. I therefore positively apply this factor (b) to my consideration of whether restoration of the Applicant’s migration status is in the best interest of those children.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the infant children. There is no direct evidence to suggest that the Applicant’s offending in Australia (or, for that matter, New Zealand) has had any direct impact on an infant child. However, I note that in the sentencing remarks of Stipendiary Magistrate Shephard dated 12 December 2017, in relation to one aspect of the Applicant’s domestic violence offending dealt with on that day, the following submissions were made on his behalf:
MS HANSON: “Thank you, your Honour. Your Honour, my client is 57 years of age. He’s currently on the – ordinarily on the disability support pension for lower back problems. He has 16 children aged between the ages of 35 and 10 years of age. Your Honour, in relation to the breach on 30 December, he instructs that the aggrieved asked him to come over and – as she couldn’t drive the car and the children needed food. He was also to pick up the car and take that car to go and purchase that food. They verbally fought and my client left…”[34]
[34] Ibid, G2, page 29, lines 1-6.
While it is not expressly stated that the children were present during any of the offences of domestic violence committed by the Applicant, it is not unreasonable to pre-suppose that the children must have, at some point, directly or indirectly, been exposed to that offending. In the absence of any positive finding about the impact of the Applicant’s prior conduct on the children, I am not able to allocate any weight to this factor (c) for the purposes of this consideration.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the children from the Applicant would have on them taking into account the Applicant’s ability to maintain contact in other ways. We live in an age of electronic communication and it is undeniable that the Applicant will be able to have contact with the children from New Zealand by SMS and/or social media platforms. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the children via Skype and other digital platforms. Even if one accepts the Applicant’s evidence about an apparently strong bond between him and the infant children, it is clear that were he to be returned to New Zealand, he would be able to maintain a level of contact with them. The other point to note is there is little or no evidence before the Tribunal that the children have been in contact with the Applicant since he has been in criminal custody and/or immigration detention. In these circumstances, this factor (d) is of minimal and only slight weight in assessing whether restoration of the Applicant’s migration status is in the best interests of the children.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the child. Clearly, there are. It seems clear that the five minor children are under the primary care of Ms O’Brien, who, on her own evidence, is the primary carer of the children. I do note that the relationship between Ms O’Brien and the Applicant seems sufficiently cordial but, at the same time, I did not take from her evidence that the Applicant somehow plays any sort of predominant or “leading light” role in the care of the infant children. For the purposes of this factor (e) I am of the view that it is of minimal weight in assessing whether restoration of the Applicant’s migration status is in the best interest of the children.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As best as I can glean from the evidence, the Applicant – since his time in criminal custody and then immigration detention – has had very sparse contact with the minor children. Apart from the Applicant’s own evidence, there is a reference from Reverend Elder Leivi Mulitauaople of the Australian First Samoa Full Gospel Pentecostal Church, Redcliffe, who speaks of the Applicant being:
“…very much concerned about his children’s welfare, especially the ones of school age and living at home. He is indeed a family man, and speaks fondly of how he has raised his children to be kind, polite and respectful.
[The Applicant] has often shared about his time in prison, and how he has regretted missing out on quality time with the children – namely the ones at home. He is also very much concerned about the livelihood of his family, especially with Luisa and the little ones...
He cares very much for Luisa and the children’s welfare, and would like to come home and support them in every way.”[35]
[35] Ibid, G2, page 80.
I have misgivings about this evidence in circumstances where it presupposes that the relationship between the Applicant and Ms O’Brien is still current. On her own evidence, they have been apart for 2.5 years. The further point is that there are no known views of the children such as to facilitate a positive application of this factor (f) in favour of restoration of the Applicant’s visa status.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent factual evidence about what the children did or did not see in terms of the Applicant’s domestic violence offending – is of no weight and is not determinative of any finding about Primary Consideration B.
Having regard to:
(a) the evidence of Ms O’Brien about the nature of her relationship with the Applicant and the role she plays as the primary carer of the infant children;
(b) the relative absence of any convincing evidence of any parental or other role played by the Applicant in the children’s lives;
(c) the slight weight to be taken from factors (a), (b), (d), and (e), of paragraph 13.2(4) of the Direction;
(d) the Respondent’s concession of the Applicant’s contention that he would reside with the children and his partner if he was to remain in Australia,[36] although this should be tempered against Ms O’Brien’s evidence that she and the Applicant have been separated for 2.5 years.
I am of the view that the best interests of the Applicant’s minor children in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh that weight attributable to Primary Consideration A.
[36] Exhibit 4, Respondent’s SFIC, page 11, paragraph [25].
Primary Consideration C: The Expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, 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. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to this Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of very serious offending in this country and his less than convincing demonstration of insight into his offending (both here and in New Zealand), should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
To my mind, the question may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·in addition to his above-stated and summarised history of offending in Australia which I have characterised as ‘very serious’, he also has a not insignificant traffic and other offending history in New Zealand involving:
otwo convictions for operating a vehicle carelessly;
otwo convictions for driving while disqualified;
otwo convictions for driving under the influence of alcohol;
otwo convictions for ‘common assault – domestic’;
othree convictions for ‘refused to accompany enforcement officer’.
·the Applicant arrived in Australia in November 2006 and barely 11 months later, in October 2007 found himself before lawful authority in Australia for offending involved wilful damage and the breach of a domestic violence order;
·his offending in this country has seen him dealt with by lawful authority on the following occasions:
o15 October 2007
o29 October 2007
o19 November 2007
o19 February 2008
o26 January 2009
o1 July 2010
o8 April 2011
o16 October 2012
o31 March 2016
o31 January 2017
o12 September 2017
·put another way, the Applicant has been in this country for something in the order of just over 12 years and his history of offending in this country has caused him to be brought before lawful authority for sentencing in virtually every year he has been here.
·viewed in terms of the escalating seriousness of his offending, his history of offending in this country has culminated in the imposition of a cumulative custodial term of 19 months on 12 September 2017. The seriousness of his offending is clearly escalating because for the entire history of his offending from 2007 until September 2017, this 19 month custodial term represents a custodial period almost four times the longest custodial term that had been previously imposed on him;
·his offending history in this country has resulted in the imposition of a total custodial period comprising something in the order of 34 months or approximately three years of custodial time. Viewed as a percentage, the Applicant’s offending in this country has caused the sentencing authorities to impose sentences effectively removing him from the community for virtually 30-35% of his total time[37] in the Australian community to which he now seeks re-admission;
[37] It must be noted that the Applicant’s effective ‘total time’ in the Australian community effectively comprises the date of his arrival here (November 2007) until the date of his incarceration (September 2017). Of course, following completion of his period in criminal custody, the Applicant was immediately taken into immigration detention. Thus, it can be said that his time in the Australian community has effectively comprises about 10 years.
·the Applicant has been less than frank and honest with the Australian authorities on four incoming passenger cards resulting in a four-time repeated failure to declare his criminal convictions, be they in Australia or New Zealand. I do not accept that those failures were inadvertent or otherwise due to any lack of capacity to understand the relevant question asked in each of the four incoming passenger cards;
·the sentencing Stipendiary Magistrate, when sentencing the Applicant on 12 September 2017, noted these things about the Applicant’s offending then before the court:
o“…any contravention of a domestic violence order is a serious matter…”
o“… the courts make those protection orders to protect the vulnerable and those people who need protecting…”
o“… it is vital that persons subject to those orders understand that they need to comply with the conditions of the order, and if they do not, there will be consequences…”
o“… the offences are aggravated when they are considered against [the Applicant’s] criminal history. [The Applicant] has had numerous convictions… for contravening domestic violence orders, and… the offences occurred whilst [the Applicant] on court-ordered parole for two offences of contravening domestic violence orders. In the past [the Applicant has] received terms of three months and five months imprisonment respectively…”
o“I am of the view that a head sentence of 12 months appropriately reflects the conduct here… I impose the 12 months imprisonment on the March breach. With regards to the December [2016] and January [2017] breach[es], I impose concurrent terms of six months. For the possess cannabis and the pipe, I am imposing concurrent terms of one month…”
[My underlining]
·the absence of independent and expert opinion to identify that any factors predisposing the Applicant to offend and to otherwise confirm that those factors are under some sort of remedial management and control such that the Applicant can definitely be said to be of a very low risk of re-offending.

I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. One must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[38]
[38] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 (“ETWK”) at [102] and [103]:
102. …I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[39]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[39] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
[76]…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[40] Justice Bromwich said:
[85]…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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms, which is precisely what it did.
[My underlining]
[40] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by (1) the cumulative total of sentences imposed upon him up to but not including those sentences imposed in September 2017 and (2) his serving a custodial term for his very serious offending that came before Stipendiary Magistrate Shephard in September 2017, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)In cumulative terms, the very serious nature of his offending in this country to date, commencing less than a year after he arrived here. As I have noted earlier, his offending is of a very serious nature and resulted in the significant head custodial term of 19 months imposed upon him in September 2017;
(ii)His demonstrated refusal to accept, respect and submit to lawful authority. This is particularly evident from his offending profile in New Zealand and Australia comprising three such offences in New Zealand (in a circa 10 year offending history) and six such offences in Australia (in a circa 10 year offending history);
(iii)My assessment of a very significant risk of substantial harm to the Australian community were this Applicant to re-offend;
(iv)My assessment that there is a moderate to high risk that the Applicant would re-offend in future;
(v)The absence of independent and expert opinion that (1) any factors involving alcohol and/or illicit substances (or any other factor) have been identified and (2) that such factors are the subject of remedial management and control such that it can be categorically stated that the Applicant is at a very low risk of re-offending;
(vi)The comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community, together with the abovementioned comments of their Honours Justices Mortimer and Bromwich regarding the application of this Primary Consideration C.
Having regard to the totality of the Applicant’s very serious history of offending in this country (plus his offending history in New Zealand), together with the incomplete state of any medical or other psychological evidence around the factors motivating that offending, I find that the Australian community would be of the view that the Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that this Applicant would continue to hold a visa.
As often occurs in hearings like this, the Applicant spoke of being given a fresh chance to resume his life in Australia. Does he deserve it? The answer to this question depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[41]
[41] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant’s history of offending is demonstrative of a repeated failure to experience any deterrent effect from earlier sentences imposed upon him, together with a refusal to respect any lawful authority imposed upon him or which he otherwise has a duty to obey. There seems, to my mind, some unresolved issues around the Applicant’s involvement with either or both alcohol and/or illicit substances. I am not convinced that his offending days are behind him having regard to the undeniably increasingly serious nature of his offending resulting in him being sentenced (in September 2017) to a head custodial term almost four times the length of any prior custodial term imposed on him. I am likewise not convinced of any important role the Applicant may play in the lives of any minor children to which he may be related either biologically or as a step-father.
I am of the view that a significant majority of the Australian community would think likewise. I cannot accept, for example, that the Applicant was not aware of consistent government, local community and media campaigns warning of the dangers of domestic violence, involvement with illicit drugs and the blatantly irresponsible – verging on reckless – misuse of the privilege of driving a motor vehicle.
His offending in this country is clearly of a very serious nature. Were he to re-offend, the risk of harm he would present to the Australian community would be quite significant. I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it reposed in him when he first came here. There is little more the Australian community can be reasonably expected to do for him.
I therefore do not consider that the Australian community would be prepared to give this Applicant a visa to remain in Australia and to participate as a member of the Australian community.
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation. Accordingly, I find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This other consideration is not relevant in this case.
(b) Strength, nature and duration of ties
The Applicant arrived in Australia in November 2006 when aged 47 years. He has spent the majority of his life in New Zealand. As noted earlier, he was in this country for barely eleven months prior to finding himself before lawful authority in October 2007. As also noted earlier, his offending has seen him before lawful authority on approximately one one one occasion in every year he has been in Australia prior to his lengthy incarceration in September 2017 which was subsequently followed by his current placement in immigration detention.
It is clear that less weight should be allocated to this Other Consideration (b) in circumstances where the Applicant commenced offending quite soon after arriving in Australia.
There is already acknowledgement by the Respondent that the Applicant has a number of immediate and extended family members in Australia.[42] The Respondent further accepts that relocation of all of the Applicant’s children, given their different mothers, would be unlikely.[43] Were the Applicant to be relocated to New Zealand, it would, as I have found earlier, be possible for him to maintain contact with his family via electronic communication.
[42] Exhibit 4, Respondent’s SFIC, page 13, paragraph [36].
[43] Ibid, paragraph [37].
There remains the evidence of the Applicant’s either current or former de facto partner, Ms Luisa O’Brien. As mentioned earlier, the evidence of their relationship is opaque and inconsistent. On the one hand, the Applicant calls her his ‘partner’, yet on the other hand, her evidence at the hearing was that she and the Applicant have been separated for 2.5 years due to his incarceration. It is not clear from Ms O’Brien’s evidence whether the separation refers to an end to their relationship or whether it is a reference to an imposed separation as a result of his separation from her due to his incarceration.
Giving Ms O’Brien the benefit of the doubt, on the assumption that their relationship has currency and that she is still his de facto partner, it seems that she will be disadvantaged by any removal of the Applicant to New Zealand because of two factors: (1) although not clear from the evidence what assistance he has provided for any of the minor children thus far, it can be reasonably found that he will be able to, in some measure, assist her with caring for and raising those minor children; and (2) we are told “… she is presently recovering from a recent hip surgery and not yet fully mobile.”[44]
[44] Exhibit 3, S 501G Documents, reference of Reverend Elder Leivi Mulitauaopele, dated 26 October 2016, G2, page 81.
There is little or no evidence of any positive contribution made by the Applicant towards the Australian community. The most regretful aspect of this Other Consideration (b) is, of course, the physical removal of the Applicant from the lives of his infant children and his partner. I note it is unlikely that his partner and infant children will relocate to New Zealand, but the Applicant can maintain contact with his family members via telephone or other electronic/digital means.
In terms of the Applicant’s employment prospects in Australia, there is no evidence before the Tribunal that he would be able to find and hold employment in Australia were the mandatory cancellation of his visa to be revoked. I am mindful that the Applicant was working in Australia until an apparently serious motor vehicle accident resulted in him suffering certain injuries which now see him requiring painkillers in order to alleviate ongoing pain. The evidence discloses he has held two positions of employment during the totality of his time in Australia. From 2008 to 2009, he worked as a bus operator with the Surfside Bus Company on the Gold Coast. From 2007 until 2008, he worked as a truck driver with Carlton and United Breweries. As mentioned earlier, his currently primary source of incoming funds comprises the disability support pension.
While this Other Consideration (b) may weigh slightly in favour of revocation, it is outweighed by the Primary Considerations and the Other Considerations which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
There can be no question that the Applicant’s domestic violence offending has no doubt resulted in an impact on Ms O’Brien. As she says in her letter of support, her experience of the relationship with the Applicant has involved “the last three years, of chaos.”
There is already acceptance by the Respondent that cancellation of the Applicant’s visa would have an impact on Ms O’Brien.[45] As against that, it must be borne in mind that the Applicant remains the subject of an apprehended domestic violence order that was made for the specific protection of Ms O’Brien.
[45] Exhibit 4, Respondent’s SFIC, page 14, paragraph [43].
There can be no question the Applicant has been afforded due procedural fairness when dealt with by the Respondent and, indeed, all aspects of lawful authority both in Australia and in New Zealand. I do not consider this Other Consideration assists the Applicant. If anything, it weighs slightly against the revocation of the cancelation of his visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that any assessment of impediments faced by a non-citizen if removed from Australia back to their country of origin must take into account:
(a)the person’s age and health;
(b)whether there are substantial language and cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant is a middle aged man of 59 years of age. He does have residual health issues resulting from the abovementioned motor vehicle accident. As against that, were he to be returned to New Zealand, there is no evidence of any language or cultural barriers militating against his capacity to re-settle there. He has at least one son who resides in Christchurch (New Zealand) with his ex-wife. New Zealand has quite similar social, medical and/or economic support to that available to the Applicant in this country such that he should have little difficulty in residing there and maintaining at least basic living standards of the type to which he is accustomed in this country.
In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand… (He has previously lived there…) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[46]
[46] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
There is a ready acknowledgement by the Respondent that apart from his son and his wife, the Applicant does not have significant social and familial support networks in that country, and, further, the Respondent accepts that this Other Consideration (e) weighs in favour of the Applicant.[47]
[47] Exhibit 4, Respondent’s SFIC, page 15, paragraph [47].
I agree with the Respondent’s concession and find that this Other Consideration (e) weighs in favour of the Applicant.
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which heavily weigh in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a) International non-refoulement obligations: not relevant;
Strength nature and duration of ties: weighs slightly in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: does not assist the Applicant.
(e)Extent of impediments if removed: weighs in favour of the Applicant.
CONCLUSION
There is no doubt that on the basis of his offending, the Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I summarise my findings as follows:
-Primary Considerations A and C weigh heavily in favour of non-revocation;
-I have attributed a measure of weight to Primary Consideration B and the Other Considerations (b) and (e);
-Any weight attributable to Primary Consideration B and the Other Considerations (b) and (e) (alone or combined) does not outweigh the combined weight I have attributed to Primary Considerations A and C.
Accordingly, I find that there is not another reason why the mandatory cancellation decision should be revoked.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.......................[SGD].......................................
Associate
Dated: 21 February 2019

Date of hearing: Monday 4 February 2019

Applicant: In person

Counsel for Respondent: Ms Rachael Law

Solicitors for Respondent: Clayton Utz

[2019] AATA 207

21 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date of hearing:	Monday 4 February 2019
Applicant:	In person
Counsel for Respondent:	Ms Rachael Law
Solicitors for Respondent:	Clayton Utz