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

Poe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4318 (29 October 2020)
Division:GENERAL DIVISION
File Number: 2020/4932
Re:Salevana Poe
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:29 October 2020
Place:Melbourne

The Tribunal affirms the decision under review.
........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
PQSM v Minister for Home Affairs [2019] FCA 1540
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
Direction No 75 - Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
29 October 2020

The Applicant, Mr Salevana Poe, seeks review of a decision by a delegate of the Respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa).
The hearing was held in Melbourne on 21 October 2020 with both parties appearing by audio visual link. Mr Poe was self-represented. The Minister was represented by Mr Gardner of Minter Ellison Lawyers.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
Mr Poe is a 37-year old citizen of New Zealand who was born in Samoa. He is one of seven siblings.[1] He first arrived in Australia in January 1997 at the age of 14.[2] Apart from a ten-day absence in 2005, he has lived in Australia continuously for 24 years.[3] Mr Poe has held the visa that was cancelled in this matter since 17 February 2005.[4]
[1] Exhibit R1, 57.
[2] Ibid, 99.
[3] Ibid.
[4] Ibid, 30.
Criminal history
Mr Poe has an extensive criminal history in Australia between 1999 and 2019.[5] This includes multiple crimes of violence, possession of weapons, dishonesty offences, property damage, and breaches of conditional liberty.
[5] Ibid, 36-39.
Previous immigration warning 2004
Due to his offending soon after arriving in Australia, Mr Poe came to the attention of immigration authorities. On 10 October 2002 he was convicted of several offences, including ‘Recklessly cause serious injury,’ which resulted in a sentence of 14 months imprisonment. On 15 March 2004 he was issued with a Notice of Intention to Consider Cancelling his visa.[6] After interviewing Mr Poe and considering his written representations,[7] he was permitted to retain his visa and instead received a formal warning as follows:
‘Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.’[8]
[6] Ibid, 74-76.
[7] Ibid, 79-92.
[8] Ibid, 77.
Procedural history
On 23 January 2020 Mr Poe’s visa was mandatorily cancelled under s 501(3A) of the Act.[9] At the time, he was serving a full-time sentence of imprisonment following convictions on 24 December 2019.
[9] Ibid, 30-35.
Mr Poe made representations to have the cancellation decision revoked,[10] but a delegate of the respondent declined to do so (non-revocation decision).[11] It is uncontentious that Mr Poe was notified of the non-revocation decision on 12 August 2020, and asked the Tribunal to review it on 17 August 2020.[12]
[10] Ibid, 53-73.
[11] Ibid, 9-10.
[12] Ibid, 3-8.
Consistent with s 500(6L) of the Act, the Tribunal must discharge its review function within 84 days of Mr Poe being notified of non-revocation, which means the Tribunal’s decision in this matter is required by 4 November 2020.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined by s 501(6) of the Act. Section 501(6)(a) of the Act provides:

(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[13]
[13] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9]; PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which relevant considerations are applied:
6.3 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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that, in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction are to be applied:
(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.
Clause 14(1) of the Direction states that other considerations must be taken into account, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78]:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR POE PASS THE CHARACTER TEST?
Mr Poe has a substantial criminal record. Because of the combined effect of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
The following documents were tendered into evidence:
(a)Documents lodged by the Respondent titled ‘Section 501 ‘G’ Documents,’ numbering 149 pages;[14]
(b)Documents lodged by the Respondent titled ‘Supplementary Documents’ numbering 296 pages;[15]
(c)Statement from Mr Poe dated 3 October 2020;[16]
(d)Letter from Mr Poe’s brother dated 30 September 2020;[17]
(e)Letter from Mr Poe’s sister dated 2 October 2020;[18]
(f)Letter from another of Mr Poe’s sisters dated 5 September 2020;[19] and
(g)Letter from mental health clinician Mr Luke Heard dated 6 October 2020.[20]
Mr Poe’s evidence
[14] Exhibit R1.
[15] Exhibit R2.
[16] Exhibit A1.
[17] Exhibit A2.
[18] Exhibit A3.
[19] Exhibit A4.
[20] Exhibit A5.
Background
Mr Poe adopted his statement dated 3 October 2020 as true and correct. He referred to challenges early in life that resulted in him being adopted by his older brother and receiving New Zealand citizenship. Mr Poe said that after arriving in Australia he learned of his parent’s divorce in Samoa, which affected him emotionally. He described other difficulties, including having to learn English in a language centre, before attending three years of secondary school. He recalled being picked on because of his lack of fluency, which caused him to become angry and contributed to his ‘violent past.’[21]
[21] Exhibit A1.
Minor children in Australia
During his oral evidence Mr Poe spoke frequently about the interests of his two biological children, who are currently 9 and 14 years of age. They are the product of two separate relationships, one of which ended in 2011 and the other in 2017. Mr Poe said the end of both relationships precipitated his relapse into ‘drugs and alcohol´ as a coping mechanism.
Mr Poe said he spoke to his eldest child frequently by telephone. He has not been allowed contact with his younger child, however, as his relationship with the child’s mother ended ‘on bad terms’ in 2017. Mr Poe explained by way of background that he and his former partner moved to a farm in country Victoria about nine years ago, but things ‘didn’t go as planned.’ He said they ‘lost the farm’ and had to relocate to Melbourne where he ‘started hanging out with the old crowd and using drugs again.’ This caused conflict with his partner and resulted in their relationship ending. Mr Poe agreed there was a family violence intervention order in place to protect his former partner after they parted ways in 2017 but said this had ‘finished.’ If allowed to remain in Australia, Mr Poe’s main priority was to establish a closer relationship with his children and family.
When asked if either of his former partners were in new relationships, Mr Poe said he ‘can’t give an answer.’ When asked if he made any financial contribution to his children, Mr Poe said he had not done so during the ‘last few years,’ but ‘normally supported’ his children in the past when working.
Mr Poe referred to nieces and nephews in Australia that he was very close to and who would be affected by an adverse decision in this matter. He wanted to make positive changes in his life to become a role model for his children, nieces, nephews, and other young people in his church community. He felt his past experiences would be useful in helping young people remain law-abiding and not repeat his mistakes.
Criminal offending
Mr Poe said he made ‘a few mistakes’ in the past for which he was ‘really sorry,’ but had now learned his lesson. He agreed that drug and alcohol abuse played a prominent role in his offending. He used alcohol and marijuana from the age of 16 and started using methamphetamine after the relationship with his wife ended in 2011. He claimed that his use of methamphetamine ‘wasn’t really heavy back then,’ but became much heavier after the breakup with a subsequent partner in 2017. He explained that he felt like a failure after losing everything he worked for, which repeated the circumstances of the previous relationship breakdown in 2011.
2004 Warning
Mr Poe agreed that he received a formal warning from immigration authorities in 2004. He also agreed that the decision to let him remain in Australia, and the rehabilitative courses provided in the past were opportunities to make meaningful changes in his life.
Rehabilitation and risk
Mr Poe was asked why he continued to reoffend after imprisonment in 2002-03, completion of several offence-specific courses and the immigration warning in 2004. He said this arose from renewed contact with negative peers and relapse into substance abuse. He stated: ‘every time I relapse, I seem to go stupid and lose myself.’ Mr Poe claimed he had been ‘sober and clean’ since being imprisoned in 2019 and ‘never felt better’ in his life.’ However, when directed to a Corrections Victoria record in evidence, Mr Poe agreed he returned a positive drug test in October 2019 while imprisoned.[22] He explained the illicit substance was Suboxone, which he got from ‘one of the boys’ and it was his ‘first time.’ He explained he had taken the drug because of ‘a few hard nights in jail.’
[22] Exhibit R2, 99.
Mr Poe said the drug, alcohol and anger management courses he undertook while in Port Phillip Prison in 2002 helped him somewhat. He erroneously claimed that after release from prison in 2003 he did not ‘reoffend until last year.’ Mr Poe said he had now matured and at 37 years of age understood ‘violence is not the answer.’ He described his most recent sentence of imprisonment followed by immigration detention as a particularly salutary experience, which made him realise he could lose ‘everything.’ This included access to his children, family, friends and a new girlfriend he started a relationship with about a year ago. When asked why similar protective factors had not worked in the past, Mr Poe said the difference on this occasion was being placed in immigration detention. Mr Poe said if he could remain in Australia, he would move in with one of his brothers, return to work, and promised to lead a law-abiding life. He claimed to have received offers of work but agreed there was no evidence before the Tribunal to corroborate this.
Misconduct in prison and immigration detention

Mr Poe was asked about his past conduct while imprisoned, which included positive drug tests and most recently the reported assault of a prisoner in October 2019. He initially claimed the latter was a ‘big misunderstanding,’ and there was only a ‘little incident but it wasn’t me – it was one of the boys.’ When asked about an Incident Report stating a review of CCTV footage identified him as the assailant,[23] Mr Poe conceded the report was accurate. He claimed the prisoner he assaulted was ‘in jail for bashing his wife and was bragging about it.’ Mr Poe said in his culture ‘we respect our girls and ladies,’ but conceded this was ‘not a good reason to bash the guy.’
[23] Ibid, 101.
When asked about an incident report stating he abused a detention centre officer in February 2020,[24] Mr Poe claimed it was a ‘misunderstanding’ and stated: ‘at the time I didn’t know the rules and the law in the detention centre.’ Mr Poe was also referred to a record dated April 2020 in which he reportedly yelled at two detention centre staff escorting another detainee: ‘don’t fucking touch him…lets go you pussies, do you want to fight.’[25] Mr Poe initially said he could not remember what he said, then said he recalled saying ‘don’t touch him’ but not the swear words. In response to further questions about the incident, Mr Poe responded: ‘I have nothing to say.’
[24] Ibid, 4-5.
[25] Ibid, 3.
Contribution to Australia and community expectations
When asked about his work history, Mr Poe said he had not worked for the last three years. During his time on the farm prior to 2017, he referred to owning sheep and cattle. He also claimed to have worked concurrently as a welder in a town nearby. Prior to that he referred to work as a cabinet maker, boilermaker and barber, but agreed he had no formal qualifications in these roles. Mr Poe also agreed there was no evidence before the Tribunal to corroborate his work claims.
Medical conditions
Mr Poe said he had no diagnosed medical conditions and could easily find work upon release. He also intended to continue with counselling and said his current mental health counsellor intended to organise an appointment for him with a psychologist.
Extent of impediments
Mr Poe said he had never been to New Zealand and had no practical or emotional support there. He conceded during oral evidence, however, that his older brother had lived in New Zealand since at least 2003.[26] He claimed that his brother is now over 40, has a girlfriend and four children, and could not provide him with any support.
[26] Exhibit R1, 79.
Evidence of one of Mr Poe’s brothers in Australia
The witness adopted his statement dated 30 September 2020. He believes Mr Poe is ‘truly remorseful,’ had noticed positive changes in him, and was confident he would avoid the ‘wrong people’ he previously associated with. When asked what he attributed the positive changes to, the witness said it was the way Mr Poe spoke about ‘his kids and wanting to change his life.’
The witness said his family would support Mr Poe, including through re-engagement with their church community. He and his wife would provide him with accommodation and other practical support. When asked why he believed Mr Poe had not previously responded to strong family support by changing his ways, the witness said they always tried to help him in the past, but he was influenced by the ‘wrong crowd.’
The witness said he would be ‘worried and concerned’ if Mr Poe was removed to New Zealand, where he would have no direct family support but subsequently conceded one of their brothers still lives in New Zealand.
Evidence of Mr Poe’s sister
The witness adopted her statement dated 5 September 2020 as true and correct. She attributed Mr Poe’s offending to joining the ‘wrong friends’ who ‘got him in trouble.’ The family had provided Mr Poe constant support in the past and would continue to support him in ‘every way.’ This included practical support and giving him ‘good advice,’ taking him to church, making sure ‘he is back on the right track,’ and ‘keeping him out of trouble.’
The witness referred to Mr Poe’s eldest child visiting the family, including most recently two weeks ago. She said that Mr Poe loved his children and is a ‘good dad.’
When asked about any family support in New Zealand that Mr Poe may be able to rely upon, the witness said she had a brother there who had a girlfriend and one daughter. The witness also mentioned there were also relatives on her mother’s side of the family in New Zealand who they were not close to.
Evidence of another of Mr Poe’s sisters
The witness adopted her statement dated 2 October 2020 as true and correct. She and her siblings are not Australian citizens but Australian residents. The witness said Mr Poe is not a bad person and had been influenced by ‘hanging out with the wrong crowd.’ She said he was sorry for his past behaviour and the family would support him in every was possible. The witness said Mr Poe is hard working and would ‘get a job straight away.’ The family would also ensure he re-engaged in their church community.
When asked what made her believe family support and the other factors she mentioned would now make a difference for Mr Poe, the witness said he had been through a ‘tough time’ and was confident he would now listen to his family instead of negative peers. She felt he was particularly motivated by the interests of his children, who the family spoke to on the telephone. She said that prior to the COVID-19 public health emergency, the mothers of both children brought them around to see members of their family.
When asked if there was any family in New Zealand Mr Poe could rely upon, the witness replied ‘none.’ When asked about the brother referred to in other evidence, the witness conceded she had a brother in New Zealand and other relatives on her mother’s side that they were not close to. The witness said she had last spoken to her brother in New Zealand two weeks ago.
Evidence of Mr Luke Heard
Mr Heard adopted his letter dated 6 October 2020 as true and correct. He is a mental health clinician for Cohealth who provides mental health support and counselling to people serving community corrections orders. Mr Poe was added to his caseload in August 2020 for mental health support and counselling, and they had since completed five sessions. In his letter Mr Heard stated that counselling to date had focussed on supporting Mr Poe ‘to develop strong self-care and coping strategies in order to better manage his symptoms of anxiety and depression.’ He thought Mr Poe’s engagement with counselling was ‘excellent’ and reflective of high levels of motivation ‘to address his mental health and substance use issues,’ with ‘significant progress’ made in this area. Mr Heard said it was intended for Mr Poe to continue these sessions on a fortnightly basis.
Mr Heard contextualised Mr Poe’s troubles as arising from his partner leaving their home with their young son, which caused him to experience ‘symptoms of depression and anxiety.’ Mr Poe had told Mr Heard he started using methamphetamine and alcohol to self-medicate but was no longer using either. Mr Heard expressed concern about the impact of Mr Poe’s removal to New Zealand on his mental health and the wellbeing of his two children. He said Mr Poe had never been to New Zealand and was without contacts or support in that country. Mr Heard stated: ‘it would be very hard for him to continue the progress he is making in that environment.’
Based on Mr Poe’s engagement with counselling to date, Mr Heard stated: ‘he has an excellent chance of continuing to improve his mental health and abstaining from substance use when released from immigration detention.’ He said this would be strongly supported by Mr Poe’s family and his awareness ‘of how to access help such as mental health and alcohol and drug support.’
When cross-examined, Mr Heard agreed the opinions in his letter were entirely based on Mr Poe’s self-reported claims. He said Mr Poe had no diagnosed psychological conditions, but he was ‘hoping to follow up’ on this if Mr Poe was released. When asked about his claim that Mr Poe was without contacts or support in New Zealand, Mr Heard conceded this ‘may be inaccurate.’ When asked if his assessment about Mr Poe’s excellent prospects of remaining abstinent from drugs would be affected by learning he had not been abstinent while imprisoned, Mr Heard said it may, but he had relied on information provided by Mr Poe.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) 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.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Mr Poe does not contest the overall seriousness of his offending, conceding he made ‘serious mistakes,’ for which he takes ‘full responsibility.’ His criminal history includes multiple convictions for crimes involving violence or possession of weapons: Intentionally cause serious injury (1999); Recklessly cause serious injury (1999; 2002); Intentionally cause injury (1999; 2001; 2002); Assault police (2006); Resist police (2006); Assault with weapon (2019); Unlawful assault (1999; 2001); Assault by kicking (1999); Assault in company (1999); Aggravated burglary with an offensive weapon (2002); Possess controlled weapon without excuse (2019); Possess regulated weapon (1999; 2001); and Persistently contravene family violence NTC /Order (2018). The Tribunal also notes multiple convictions for breach of conditional liberty in 1999, 2001, 2002, 2011, 2018, and 2019. Other categories of less frequent offending include dishonesty, property damage, and public nuisance offences.
In the 2002 sentencing remarks his Honour noted that Mr Poe, who was then aged 19, had already spent ‘some seven months in an adult prison.’[27] Mr Poe was being sentenced on that occasion for his participation in a home invasion in company with others while armed with pieces of wood. Three occupants of a home were injured, and property damaged. Mr Poe was also found to have beaten the occupant of a car with a tennis racquet, robbing the victim of money, a phone, and damaging his car. His Honour imposed a ‘total effective sentence of 18 months’ with a non-parole period of six months.
[27] Ibid, 43.
Mr Gardner submitted that the totality of Mr Poe’s offending during the last 20 years was serious conduct and weighed heavily against his application.
Tribunal findings: The nature and seriousness of the conduct
The following aspects of cl 13.1.1(1) of the Direction are relevant in this matter:
(a)13.1.1(1)(a): Mr Poe’s convictions over the last 20 years encompass multiple violent crimes, including in the company of others. He has also committed multiple conditional liberty offences, which are considered serious and reflect a lack of respect for judicial orders;[28]
(b)13.1.1(1)(b): Mr Poe was convicted in November 2018 of persistently contravening a family violence order taken out to protect his former partner, who is the mother of his youngest child.[29] Such offending is considered serious regardless of the sentence imposed;
(c)13.1.1(1)(c): In 2006 Mr Poe was convicted of Assault police and Resist arrest. These are crimes committed against officials in the performance of their duties and are serious. His December 2019 conviction for Assault with weapon related to violence against a person with an intellectual disability, including by holding a flick knife to the victim’s neck and forehead.[30] Such conduct against a vulnerable person is considered serious;
(d)13.1.1(1)(d): Mr Poe’s offending both as a juvenile and adult was initially dealt with through non-custodial sentences like supervision, fines, unpaid community work and a Community Based Order (CBO). The court subsequently resorted to custodial sentences. This first occurred after Mr Poe breached a Youth Supervision Order in 1999. As an adult he breached CBOs, failed to answer bail, persistently contravened an IVO, and committed an indictable offence while on bail. His offending has resulted in multiple sentences of imprisonment ranging from a week to 14 months in duration. Sentences of imprisonment are at the top end of a court’s sentencing hierarchy;
(e)13.1.1(1)(e): Mr Poe’s offending is disturbing in its frequency, particularly for offences involving violence and breaches of conditional liberty;
(f)13.1.1(1)(f): The compounding effect of Mr Poe’s offending over two decades is readily apparent. He has caused harm to multiple victims. The cumulative effect of his crimes is evident from the need for frequent intervention by police, the courts, and those supervising his conditional liberty arrangements;
(g)13.1.1(1)(h): Mr Poe was undeterred from reoffending despite a formal warning from immigration authorities in 2004.[31]
[28] See for example Exhibit R2, 279.
[29] Exhibit R2, 259-260; 268; 279-280.
[30] Exhibit R1, 52.
[31] Ibid, 78.
For the reasons outlined above, the Tribunal finds Mr Poe’s offending is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk Mr Poe poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated.”
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111]:[32]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
[32] Cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]-[43].
The High Court has held that past actions are legitimate predictors of future behaviour.[33] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
[33] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579 (“Guo”).
The 2002 sentencing remarks refer to Mr Poe’s convictions on several offences as a 17-year-old that involved violence, dishonesty and damage to property. His Honour considered that due to Mr Poe’s young age, he had ‘good prospects of rehabilitation.’[34]
[34] Ibid, 44-45.
In his 2020 Personal Circumstances Form (2020 PCF) Mr Poe explained the factors relevant to his offending and his risk of reoffending in the following terms:
‘I was living a transient lifestyle where drugs were involved. I’m not downplaying my responsibility but I truly believe these substances made me a different person…I am thinking clearly and for the first time in a while I am thinking of my future and my children….Obviously drug use is a risk for me but being abstinent is a priority for me. I believe if I do this I can remain crime free with the help of my family in Australia. ’[35]
[35] Exhibit R1, 65.
When asked in his 2020 PCF about any previous warnings from the Department, Mr Poe erroneously stated ‘no warning from Department.’[36] As detailed earlier, Mr Poe received a formal warning from immigration authorities in May 2004,[37] which he acknowledged on 17 May 2004.[38] Prior to the decision not to cancel his visa, Mr Poe made written representations and was interviewed by the Respondent’s Department on 26 March 2004. In his written representations, Mr Poe stated:
[36] Ibid.
[37] Ibid, 77.
[38] Ibid, 78.
During my time in Australia i have not been the best citizen. But now i know my mistakes and intend to make things right.
I am currently living with my fiancee and her family…and am working fulltime…i have been employed…for a period of six months.
My fiancee and i have recently bought an apartment…and intend on moving into the flat at the start of next year. We are planning on marrying next year February and starting a family as soon as possible. We have so much plans and all this keeps me motivated and makes me realise what a waste of time my life has been.
I know my faults and am not proud of what i have done when my family and i moved to Australia it was to start fresh but once i heard that my parents had split i no longer cared about what happened to me which was a stupid thought because i wasted a lot of time and hurt a lot of people along the way.
My last time in Prison has taught me a lot i have learnt not to take life for granted, appreciate the time i have, and not waste my time or my life for fun. I am a changed person and know that what has happened in the past has been left in the past. I no longer want the life that i had. I have learnt a lot and intent to make the most of my life.
Life is to short to waste on getting yourself into trouble, i know that what has happened in the past will no longer be repeated in my future. When i was in jail i did some courses to help me with my rehabilitation i did an Anger Management Course which has taught me to control my anger, and an Alcohol Annonoynmous Course which has taught me to control my drinking. I still do drink but now only moderation and only when i am at home, my father in law and i always drink together on Sunday's whilst cooking the barbeque.
…
“i am sorry for the trouble that i have mde and for taking my stay in Australia for granted. You excepted me into your country and i will always be forever grateful. I am no longer the person that i was, i have grown up and matured. I know my responsibilities and my priorities, my number one priority is to get my life back on track and builing a happy home with the ones that care for me”.
I know take this time to ask you to reconsider the cancellation of my visa i have changed and am making a fresh start of my life.[39] (Errors in original)
[39] Ibid, 86.

Mr Poe’s 2004 record of interview stated that he referred to his offending as ‘stupid’ and due to being ‘young’ and immature. When asked about the likelihood his violent conduct would be repeated, Mr Poe is recorded as stating:
No, no, no. No way. I was young and stupid - I hanged around with the wrong crew at the wrong place at the wrong time. Was into the alcohol a lot - using a bit of marijuana too…Well, I learnt my lesson. Had a job - worked in prison…[40]
[40] Ibid, 80.
Mr Poe claimed in 2004 that he had stable employment and wanted to open a business with his fiancé.[41] The Tribunal notes supportive letters dated 2004 from Mr Poe’s eldest brother,[42] partner,[43] partner’s mother,[44] niece,[45] a case worker who helped Mr Poe secure employment,[46] and Mr Poe’s employer at the time.[47] It is clear that Mr Poe’s aspiration to make meaningful changes was strongly supported by family members and others. He claimed to have learned valuable lessons from imprisonment, was working fulltime, had purchased a home with his partner, was planning on marrying and starting a family, and stated that his ‘number one priority’ was to get his ‘life back on track’ and build a ‘happy home.’[48] The collective effect of supportive letters was that Mr Poe had learned his lesson and was determined to lead a productive and law-abiding life.
[41] Ibid, 87-88.
[42] Ibid, 89.
[43] Ibid, 91.
[44] Ibid, 92.
[45] Ibid, 90.
[46] Ibid, 87.
[47] Ibid 88.
[48] Ibid, 86.
The Tribunal notes a record dated 5 August 2020 from Corrections Victoria, assessing Mr Poe as a ‘medium risk of re-offending with no changes in acute dynamic risks.’[49]
[49] Exhibit R2, 94-95.
The Tribunal notes the references in evidence to Mr Poe’s persistent problems with drug and alcohol abuse. One assessment in the context of a court appearance considered that Mr Poe has a ‘significant substance use disorder,’ with the following history recorded:
‘Mr Poe reported a history of using cannabis and ice (methamphetamine) abuse. He reported he commenced using cannabis from the age of 16, and smokes up to three grams daily. He commenced using ice one year ago, and states he uses one to two points over the weekend.’[50]
[50] Ibid, 225.
The Tribunal notes records in evidence regarding Mr Poe’s conduct while imprisoned and in immigration detention. These include:
(a)Incidents while imprisoned in 2002, including being found with drug smoking implements, a ‘shiv’ constructed with razor blades, refusing to submit urine samples for drug tests, and returning a positive drug test;[51]
(b)Assaulting another prisoner on 25 October 2019, which caused Mr Poe to be placed in mechanical restraints and transferred to a management cell;[52]
(c)Recording a positive drug test on 27 October 2019 which resulted in an internal disciplinary hearing where Mr Poe admitted guilt and was fined.[53] Mr Poe was also reprimanded and ordered to pay restitution on 22 December 2019 for misusing an electrical appliance in his cell;[54]
(d)Abusing a detention centre officer on 10 February 2020 by yelling ‘Fuck off you dog’ on several occasions;[55] and
(e)Displaying abusive and aggressive behaviour towards detention centre staff on 14 April 2020 in company with another person, by stating: ‘let’s go you pussies, do you want to fight.’[56]
[51] Ibid, 105-109.
[52] Ibid, 101.
[53] Ibid, 99.
[54] Ibid, 100.
[55] Ibid, 5.
[56] Ibid, 3.
In support of his rehabilitative claims Mr Poe relies on rehabilitative courses he completed some 18 years ago in 2002:
(a)Participation Advice relating to a 12-hour group drug education program in July 2002.[57] The certificate stated that Mr Poe ‘attended all sessions and…displayed a good insight into the topics presented. Overall he was an attentive and cooperative participant…;’
(b)Participation Advice relating to a to a 12-hour group relapse prevention program in July 2002.[58] The certificate stated that Mr Poe ‘attended all sessions and…displayed a good insight into the topics presented. Overall he was an attentive and cooperative participant…;’
(c)Certificate dated 3 September 2002 stating that Mr Poe had ‘maintained ongoing participation’ in an Alcoholics Anonymous program;[59] and
(d)Certificate dated 9 August 2002 stating that Mr Poe had completed an anger management program that contained modules relating to ‘Understanding Emotions and Emotional Traps,’ ‘Situations, People & Issues Creating Anger,’ ‘Strategies to manage my Anger,’ and ‘Completion of a Personal Anger Plan.’[60]
[57] Exhibit R1, 82.
[58] Ibid, 83.
[59] Ibid, 84.
[60] Ibid, 85.
The Tribunal has also considered a statement from Mr Luke Heard dated 6 October 2020 whose oral evidence was summarised earlier in these reasons.
In addition to the Respondent’s written submissions, Mr Gardner stated during closing that ‘most if not all’ of Mr Poe’s past assurances about leading a law-abiding life have not been realised. He contended that Mr Poe constitutes a moderate and unacceptable risk of reoffending that weighed heavily against his application.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Mr Poe’s criminal history and other misconduct is lamentable. It includes repeated offences involving violence, dishonesty, and breaches of conditional liberty, despite opportunities for offence-specific rehabilitation. He has caused harm to numerous victims and persistently demonstrated a lack of respect for Australia’s law enforcement framework. His past undertakings to the courts and immigration authorities about overcoming his addictions and living a law-abiding life, are yet to be realised. Any similar reoffending could cause serious physical or psychological harm to members of the community.
The ‘good prospects of rehabilitation’[61] attributed to Mr Poe during sentencing in 2002 did not result in enduring changes. It is accepted there are lengthy periods between 2002 and August 2006, August 2006 and February 2011, and January 2012 and October 2018, where no convictions are recorded against him. This reflects an ability to remain law-abiding for periods of time, which is to his credit. Unfortunately, he was convicted of further crimes after each period, diminishing the force of his current claims about insight, rehabilitative progress and recidivism risk.
[61] Ibid, 44-45.
The Tribunal accepts that abuse of drugs and alcohol contextualises much of Mr Poe’s criminal conduct. He has been unable to achieve enduring abstinence from illicit substances in the past, including while imprisoned. The evidence discloses drug-related incidents during imprisonment in 2002 and most recently on 27 October 2019.[62] He has also engaged in serious misconduct while imprisoned, including abusive and violent behaviour. Any abstinence Mr Poe has achieved or claimed good behaviour in a controlled custodial environment is for a relatively short period of time. His claimed determination to remain abstinent and law-abiding is untested in the community, where his resolve has been found wanting in the past.
[62] Ibid, 99.
The Tribunal places little weight on the evidence from Mr Luke Heard which reflects over-reliance on Mr Poe’s statements. The Tribunal notes in particular:
(a)Counselling between Mr Heard and Mr Poe has only occurred for a relatively short period since August 2020;
(b)Mr Heard is not qualified to make a mental health diagnosis and concedes he is yet to refer Mr Poe for expert assessment;
(c)Mr Heard is under a misapprehension that Mr Poe was abstinent from illicit substances during his last imprisonment, which is factually incorrect;
(d)Mr Heard’s claim that Mr Poe ‘has no contacts or support’ in New Zealand is factually incorrect;
(e)Mr Heard’s opinion about the potential effects on Poe’s children was made without any prior contact with the children, their mothers or other caregivers;
(f)Mr Heard’s opinion that it ‘would be very hard for [Mr Poe] to continue the progress he is making’ in New Zealand is not accepted, given the lack of any corroboration.
The Tribunal rejects Mr Poe’s claim that all his offending ‘was at a young age,’ given his convictions were between 16 and 36 years of age. The Tribunal accepts the stress Mr Poe experienced during the breakdown of a relationship in 2017 would have been a difficult time for him, but it is not a persuasive explanation for his offending. The evidence shows his offending over two decades transcends occasions where relationship issues were a factor. Similarly, Mr Poe’s past association with negative peers is accepted, but this does not diminish his personal responsibility for crimes committed or his persistent inability to break away from bad influences.
The Tribunal is unpersuaded by the protective factors Mr Poe invokes. These include greater maturity, the salutary experience of imprisonment and immigration detention, the interests of his children, stable accommodation, purported offers of employment, church involvement, and support from family and friends. These protective factors are similar to those in the past, which did not prevent Mr Poe’s relapse into substance abuse and further crimes. He reoffended after the birth of his two children, and despite steadfast support from his family and church community, including an older brother who is a Pastor and father figure in his life. That brother did not provide a statement to the Tribunal for the present hearing. Mr Poe does not convey a persuasive plan for what strategies will assist him in achieving more meaningful and enduring changes in his life if released.
The Tribunal is unpersuaded that Mr Poe has achieved the substantial insight or rehabilitative progress he claims. His relatively recent completion of five mental health counselling sessions and intention to complete more in the future is acknowledged. The offence-specific rehabilitative courses he relies upon, however, were completed some 18 years ago. It is noteworthy that in 2004 Mr Poe claimed to have learned his lesson after completing these courses, said he was a ‘changed person,’ and intended to leave his crimes ‘in the past.’ He was afforded an opportunity to demonstrate this by being given a formal warning rather than having his visa cancelled but reoffended soon after and continued to reoffend over the next 15 years. There is no independent expert evidence to corroborate Mr Poe’s rehabilitative claims. Notwithstanding his aspiration to continue his rehabilitation, cl 13.1.2(1)(b) of the Direction states that decisions should not be delayed for rehabilitation to be undertaken.
Mr Poe has not been deterred from further crimes by non-custodial or custodial sentences, past rehabilitative opportunities, or the risk of visa cancellation. His claims about greater maturity in recent years are diminished by his misconduct in prison and immigration detention, which includes violence, drug-related incidents, and abuse of custodial officers. The Tribunal is unpersuaded, notwithstanding Mr Poe’s stated determination to the contrary, that the impact of his most recent imprisonment and uncertain visa status, is any more of a ‘wake-up call’ than it was in 2004.
The Tribunal is not satisfied that Mr Poe’s undertakings to remain abstinent and law-abiding can be relied upon. The risk he poses is not minimal or trivial and similar offending would expose members of the Australian community to significant harm. The Tribunal finds Mr Poe’s risk of reoffending is unacceptably high. Coupled with the very serious nature of his crimes this primary consideration weighs very substantially against revocation.
Tribunal consideration: Best interests of minor children in Australia
Clause 13.2 of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the revocation or non-revocation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 13.2(4) to 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 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.
Mr Poe’s primary concerns about removal to New Zealand centre on the impact of his two biological children in Australia, a son aged 9 and a daughter aged 14.[63] The evidence refers to him having a third biological child in New Zealand, with the mother of that child having ‘full custody.’[64] Mr Poe did not refer to this child or that past relationship during the hearing.
[63] Ibid, 60.
[64] Ibid, 81.
Mr Poe claimed he has a ‘co-parenting role’ with the mother of his eldest child, and a relationship of ‘extreme closeness’ with both children.[65] He said their relationship in the past encompassed day-to-day activities like ‘school runs’ and sporting activities. He claimed his removal to New Zealand would result in a ‘tremendous’ effect on the children, denying them the opportunity of maintaining close contact, and precluding him from having a direct role in their upbringing.[66] No statements were tendered from the mother of either child. The Tribunal has considered the evidence of three of Mr Poe’s siblings about contact with Mr Poe’s children during his imprisonment and immigration detention.
[65] Ibid, 62-63.
[66] Ibid, 63.
The Tribunal has considered Victoria Police records referring to reports from the mother of Mr Poe’s youngest child, regarding breaches of an Intervention Order after receiving telephone calls from Mr Poe. The police record states that ‘DHHS child protection have involvement’ and Mr Poe was ‘not allowed any contact with his son.’[67] The child’s mother reportedly changed her telephone number to prevent any future contact.
[67] Exhibit R2, 39.
The Tribunal has considered an email lodged on 13 October 2020, purportedly from Mr Poe’s 14-year-old daughter, who did not give oral evidence at the hearing. The email stated:
‘i am [name deleted], i’m 14 years old and i’m the daughter of salevana poe who’s currently detained in a detention centre.
my dad is a good man and a big part of my life.
he’s made a few mistakes but he’s a very good father to both me and my younger brother. the relationship me and my dad have is indescribable and to know that he may get everything he’s ever loved and worked for taken away from him is unfair. although my parents split while i was still young my dad and i have maintained a really close relationship and him going to new zealand would have a massive impact on my life. My dads a hero in my eyes and a good father figure like him is exactly what i need for the next few years of my upbringing. if my dad got deported it wouldn’t only hurt me but it would hurt everyone in my family. my dads a great guy and if he were able to stay here at home it would mean the world to me.
regards, [name deleted]
(Errors in original)
In his written evidence Mr Poe referred to seven nieces and nephews, two of whom are adults.[68] He said his family circumstances in Australia were akin to a ‘traditional Samoan household with strong family ties.’[69] If removed, he said he could no longer be ‘the loving uncle’ his nieces and nephews are used to.[70] In his oral evidence Mr Poe spoke generally about wanting to be a role model for young people in his ethnic community, including his nieces and nephews, but his evidence did not refer to close relationships with any particular niece or nephew, and their interests were not differentiated.
[68] Ibid, 64.
[69] Ibid, 66.
[70] Ibid.
Tribunal findings: Best interests of minor children in Australia
The Tribunal has no doubt Mr Poe loves his two children and aspires to play a more meaningful role in their lives. However, in the absence of any evidence from the mothers or other caregivers of the children, it is difficult to make reliable judgements about his past role in their lives, or the extent to which his aspiration for a closer relationship in the future would be welcomed. It is clear from the evidence that as a result of his addictions and persistent offences, Mr Poe has been absent from the children’s lives for considerable periods of time since his relationship with their mothers ended in 2011 and 2017. That is particularly so for the youngest child after a rancorous breakup with the child’s mother in 2017, and the family violence order put in place in 2018, which Mr Poe repeatedly breached. Such conduct could not have had a positive impact on his former partner or youngest child.
The evidence discloses that others have fulfilled the primary parental role for Mr Poe’s children and there is no evidence he has provided any meaningful financial contribution for them during the last three years at least. The Tribunal accepts from the evidence, however, that:
(a)the mothers of both of Mr Poe’s children still bring them to visit members of Mr Poe’s family;
(b)Mr Poe has some continuing relationship with both children, which includes telephone and email contact with his eldest child, and contact with his youngest child predominantly through other members of his family; and
(c)Mr Poe aspires to an improved relationship with his children if released.
In relation to his nieces and nephews, Mr Poe’s relationship with them is non-parental in nature. These relationships have also been contextualized by periods of absence and limited meaningful contact during periods of imprisonment, while in the thrall of his addictions, or since being taken into immigration detention. Based on the general nature of Mr Poe’s evidence and that of his siblings, the relationships with individual nieces and nephews could not be differentiated.
Mr Poe’s eldest child becomes an adult in approximately four years, which represents a relatively limited time for him to play the more positive parental role he aspires to. There is an approximately nine-year period before his youngest child reaches adulthood. Based on Mr Poe’s evidence about a dearth of contact with that child after his former partner ‘cut off’ contact in 2017, and the evidence about the family violence order in 2018, Mr Poe’s aspiration to resume a parental relationship is speculative at best.

On balance, the Tribunal finds that revocation of the visa cancellation is in the best interests of Mr Poe’s two children and his nieces and nephews. They may want to have a closer relationship with him in the future, which would be adversely impacted if he was removed. There is a prospect of him playing a positive role in the lives of these minor children, which is admittedly dependent on the extent to which such a role is welcomed by the mothers and other caregivers of his biological children. The Tribunal accepts those siblings that gave evidence would welcome his reengagement with their children, although these relationships are non-parental and there is no evidence that Mr Poe’s nieces and nephews are in any way reliant on him. On the totality of the evidence, the Tribunal finds this primary consideration weighs slightly at best in favour of revocation.
Tribunal consideration: Expectations of the Australian community
Clause 13.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The meaning of this provision in a previous Direction was considered by the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). Although the Court focussed on the construction and application cl 11.3(1), it is in identical wording as cl 13.3 of the current Direction. Notwithstanding the differences in judicial reasoning, the plurality held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[71] As Charlesworth J explained at 74:
‘…In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.’
[71] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
Stewart J summarised the community’s expectations at [101] and [103] in the following terms:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[72]
[72] Ibid at [75]-[76] per Charlesworth J.
The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[73]
[73]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
Mr Poe said that his renewed determination to remain abstinent and law-abiding deserved another chance. If given that opportunity he said that his past criminal conduct ‘will never happen again.’
Mr Gardner relied on the Respondent’s written submissions in stating that this primary consideration weighed heavily against Mr Poe’s application.
Tribunal finding: Expectations of the Australian community
Given the specific circumstances of this case, particularly the serious and prolonged nature of Mr Poe’s offending, the deemed community expectation is that the mandatory cancellation of his visa should not be revoked. This primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Mr Poe made no international non-refoulement obligations claims when his visa was previously considered for cancellation in 2004.[74] In his 2020 PCF he ticked the ‘No’ box when asked if he had ‘any concerns or fears’ about what would happen to him if returned to New Zealand.[75] Mr Poe’s concerns relate predominantly to separation from his family in Australia and a lack of support in New Zealand. These are considered under Extent of impediments later in these reasons.
[74] Ibid, 80.
[75] Ibid, 69.
Tribunal findings: International non-refoulement obligations
Australia’s non-refoulement obligations are not enlivened by the specific circumstances of this case, and this consideration carries neutral weight.
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has 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, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Poe has lived in Australia for approximately 24 years during which he undertook some secondary schooling and commenced his working life.[76] His offending commenced while he was a juvenile and his most recent convictions are in 2019.
[76] Ibid, 68.
Mr Poe said he does not want his family members to suffer as a result of his mistakes, particularly his wife, who he says would be left to raise their daughter alone. He stated in his 2020 PCF that he would live with his wife if released, and the impact on her would be ‘great’[77] if he was removed. He said she would become a single parent with little or no support.[78] When asked about this during the hearing, Mr Poe agreed he would not live with his wife who he separated from in 2011. He was unaware if she had a new partner. Following their separation, he started a relationship with the mother of his youngest child until 2017. He now claims to be in another relationship that commenced about a year ago. Mr Poe said if released he would instead live with one of his brothers.
[77] Ibid, 59.
[78] Ibid, 62.
In his 2020 PCF Mr Poe referred to relationships with four siblings, his mother-in-law, and a brother-in-law, who he says are either Samoan or Tongan citizens.[79] In his oral evidence he agreed that another brother, not referred to in the 2020 PCF, lives in New Zealand. There are no statements in the present matter from Mr Poe’s former wife, mother-in-law, brother-in-law, the former partner he separated from in 2017, the girlfriend he claims to have commenced a relationship with approximately a year ago, or three of his six siblings.
[79] Ibid, 66.
Mr Poe did not list a work history in his 2020 PCF but in his oral evidence referred to previous work as a cabinet maker, boilermaker, and running livestock on a farm owned with his former partner. The available evidence only discloses a relatively brief work history as a ‘furniture labourer’ in 2003 and 2004,[80] and as a ‘hairdresser’ while imprisoned.[81]
[80] Ibid, 87-88.
[81] Ibid, 80.
When asked about any positive contribution while living in Australia, Mr Poe said he was an active church participant and youth leader, who played a leadership role with ‘underprivileged youth.’[82] He is concerned about not being able to continue that work if removed or being able to see the positive results of his efforts. There is a letter in evidence dated 25 March 2004 from Mr Poe’s brother, who a church pastor,[83] but no recent evidence about church attendance or contribution to a youth group.
[82] Ibid, 67.
[83] Ibid, 89.
Tribunal findings: Strength, nature and duration of ties
Mr Poe has lived in Australia for 24 years and the Australian community may consequently have a higher degree of tolerance for his criminal conduct. This is offset to a degree and less weight is consequently placed on this consideration because Mr Poe’s offending began soon after he arrived in Australia.
Some positive contribution by Mr Poe through work, family ties and church involvement can be acknowledged in the past, but he has set a very poor example overall since his teenage years. The totality of his conduct is inconsistent with his claims about leading and inspiring underprivileged youth.
The Tribunal is satisfied from recent statements that Mr Poe continues to enjoy close relationships with two sisters and a brother. The Tribunal places little weight on the 2004 letters from Mr Poe’s eldest brother, niece, the mother of his eldest child and her parents, which are now over 16 years old and of limited probative value.
In the absence of statements from Mr Poe’s two former partners or the woman he claims to have been in a relationship with for the past year, the Tribunal does not accept their interests are affected by a decision in this matter. In respect of the partner he separated from in 2017, the only available evidence from early 2018 is that she wants nothing to do with him. That is apparent from Victoria Police records where she reported unwanted contact by Mr Poe on multiple occasions as contravening a family violence intervention order:
[Former partner’s] ‘address is confidential as [Mr Poe] does not know where she resides. [Former partner] is in the process of changing her phone number to prevent any further contact.’[84]
Mr Poe was subsequently convicted in November 2018 of persistently contravening a family violence intervention order and claimed at the current hearing that his former partner ‘cut off’ contact with him.
[84] Exhibit R2, 36-38.
The Tribunal accepts that those relatives who submitted statements in this matter would experience emotional hardship if Mr Poe were removed. However, there is no evidence they are reliant on Mr Poe for any practical or financial support. There is also no evidence family members who wanted to maintain a relationship with Mr Poe could not do so by telephone or visits. On balance, this consideration weighs moderately in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work undertaken by Mr Poe in Australia enlivens consideration of Australian business interests within the meaning of the Direction. The Tribunal places no weight on this consideration.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence from the victims of Mr Poe’s offending regarding the impact of a decision in this matter. The Tribunal places no weight on this consideration.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
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.
Mr Poe lived in Samoa for the first 14 years of his life before migrating to Australia. He reports no diagnosed medical or psychological conditions[85] and aspires to an immediate return to work if released. Mr Heard stated that Mr Poe may have undiagnosed conditions given past symptoms of depression and anxiety, but is unqualified to make a diagnosis, and an expert assessment has not yet been undertaken.
[85] Ibid, 67.
Mr Poe’s evidence is that he has no source of support or social networks to rely upon in New Zealand but concedes that a brother and members of his mother’s family reside in New Zealand.
Tribunal findings: Extent of impediments if removed
The Tribunal accepts Mr Poe has spent most of his life in Australia, having arrived here as a 14-year-old. The Tribunal also accepts his unchallenged evidence about not previously being in New Zealand and having no family or other social links there apart from his brother and members of his mother’s family, who he is not close to.
Mr Poe is 37 years of age and reports no diagnosed medical or psychological conditions precluding his return to work. There is also no discernible language or cultural barrier impeding his removal. Should Mr Poe be unable to find work in New Zealand or needed other assistance, there is no evidence he would be treated any differently to other New Zealand citizens, including in respect of income support, health services, public housing, or other benefits. There is also no evidence that the practical and financial support promised by some witnesses could not be re-directed to assist his resettlement in New Zealand.
The key impediment confronting Mr Poe if removed is separation from his predominant family and social ties in Australia. His ability to continue or strengthen the relationships with his children, other relatives and friends would be impeded. There is no evidence, however, that Mr Poe could not establish new social networks and sources of support in New Zealand, or that his relationships in Australia could not continue by telephone, video calls or visits. Admittedly, this is a poor substitute for continuing physical contact in Australia. It is accepted that separation from his closest family ties in Australia has the potential to impact Mr Poe’s mental health. There is no evidence, however, that he could not access treatment for any currently undiagnosed or emerging mental health conditions in New Zealand.
On balance, the impediments confronting Mr Poe after 24 years in Australia and the challenge of establishing himself in a country he has few past links to, weigh moderately in favour of revocation.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Poe does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. The Tribunal’s consideration of the evidence is such that it is appropriate to give greater weight to the relevant primary considerations than the other considerations: cl 8(4) of the Direction.
Mr Poe’s criminal history in several categories is very serious and his past undertakings to live a law-abiding life, including after a formal immigration warning in 2004, are yet to be realised. His recidivist offending behaviour over two decades and continuing misconduct in custodial environments, is such that he constitutes an unacceptably high risk of harm to the community. Given that Mr Poe has frequently departed from the norms of conduct expected of non-citizens, the deemed community expectation is that his visa should remain cancelled.
Several countervailing considerations weigh in Mr Poe’s favour. These include the interests of his two children, nieces and nephews. Moreover, what family ties he has are predominantly in Australia and after 24 years he would have to establish new social networks and sources of support if removed. This would undoubtedly have an adverse emotional effect on some family members who have steadfastly supported him as he confronted the consequences of his criminal conduct since 1999. It also has the potential to adversely affect Mr Poe’s mental health.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Poe’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These outweigh the primary consideration ‘Best interests of minor children’, which weights slightly in his favour, and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which each weigh moderately in favour of revocation.
DECISION
It follows that the Tribunal affirms 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 A. Nikolic AM CSC

………………………………….
Associate
Dated: 29 October 2020

Dates of hearing: 21 October 2020

Applicant: In person

Advocate for the Respondent: Mr Anthony Gardner

Solicitors for the Respondent: Minter Ellison Lawyers

[2020] AATA 4318

29 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	21 October 2020
Applicant:	In person
Advocate for the Respondent:	Mr Anthony Gardner
Solicitors for the Respondent:	Minter Ellison Lawyers