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

Qiolevu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 255 (20 February 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2019/7953
GENERAL DIVISION  )
Re: Qiolevu
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Respondent
DIRECTION
TRIBUNAL:  Senior Member B J Illingworth
DATE OF CORRIGENDUM:            3 March 2020
PLACE:           Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
1.To remove paragraph 87 in the text of the decision and to correct every paragraph number thereafter to count sequentially from 87 onwards.

2.The text of the decision at paragraph 93 ‘…Respondents SOFICs…’ be altered to read ‘…Respondent’s SOFICs…’
3.The text of the decision at paragraph 100 ‘…Applicants relationship…’ be altered to read ‘…Applicant’s relationship …’
4.The text of the decision at paragraph 155 ‘It is only Other Considerations (b) and (c)… address these Other Considerations (b) and (c) in turn’ be altered to read ‘It is only Other Considerations (b) and (e)… address these Other Considerations (b) and (e) in turn.’

5.The heading text of the decision between paragraphs 170 and 171 ‘Other Consideration (d): Extent of impediments if removed’ be altered to read ‘Other Consideration (e): Extent of impediments if removed’.

6.The heading text of the decision between paragraphs 174 and 175 ‘Conclusion: Other Consideration (d)’ be altered to read ‘Conclusion: Other Consideration (e)’.
7.The text of the decision at paragraph 177 ‘…this other consideration…’ be altered to read ‘this Other Consideration…’

8.The text of the decision at paragraph 180(d) ‘…together with Other Considerations (b) and (d)…’ be altered to read ‘…together with Other Considerations (b) and (e)…’

9.That the associate’s certification ‘…the preceding one hundred and eighty three (183) paragraphs…’ be altered to read ‘the preceding one hundred and eighty two (182) paragraphs…’

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B J ILLINGWORTH
(Senior Member)

Division:GENERAL DIVISION
File Number(s): 2019/7953
Re:Mr Moape Qiolevu
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth

Date:20 February 2020
Place:Sydney

The Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BC Subclass 100 Partner visa be revoked.
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Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of Applicant’s visa – Applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali and Minister for Home Affairs [2018] AATA 2512
FYBR v Minister for Home Affairs [2019] FCAFC 185
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
R v J.T. [2007] NSWDC 377
Slynt & Slynt [2017] FamCA 812
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
20 February 2020
INTRODUCTION

This matter relates to an application for review filed by Mr Moape Qiolevu (“the Applicant”) on 3 December 2020. The decision the Applicant seeks to review is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 28 November 2019 not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner visa (“visa”).
At the hearing before the Tribunal, the Applicant appeared in person and was unrepresented. He was assisted by an interpreter. He was able to give most of his evidence in English but from time to time he needed assistance. The interpreter gave similar assistance to the Applicant’s witnesses when required.
The Respondent was represented by Mr Oliver Morris of Clayton Utz.
BACKGROUND
The Applicant is a 24 years old citizen of Fiji. He was born in October 1995 in Fiji.
On 24 July 2012, the Applicant was granted his visa[1] and subsequently arrived in Australia on 3 September 2012, aged 17 years.[2] Since that time, the Applicant was residing in his family home with his mother, step-father, two sisters, brother and step-brother. He has a step-sister who did not live with the Applicant. The Applicant has three nieces and one nephew. He has a four year old daughter who resides with her mother at an unknown location.
[1] Exhibit A, G21, page 358.
[2] Ibid, G2, page 43.
On 27 November 2018, the Applicant was sentenced by Magistrate Holdsworth of the Liverpool Local Court for the following offences:[3]
(a)Assault occasioning actual bodily harm (DV) – T2; and
(b)Fail to appear in accordance with bail acknowledgement.
[3] Ibid, pages 26 – 29.
For the offence of assault occasioning bodily harm, the Applicant was sentenced to 12 months imprisonment to be served by way of an intensive corrections order (“ICO”). For the offence of fail to appear, the Applicant was convicted without any further penalty.
On 19 March 2019, the Applicant’s ICO was revoked by the State Parole Authority after he failed to attend an appointment with his community corrections officer and he was ordered to serve the balance of his term of imprisonment.[4]
[4] Ibid, pages 32 – 33.
On 23 May 2019, the Applicant’s visa was mandatorily cancelled by a Ministerial delegate under s 501(3A) of the Migration Act 1958 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving that term of imprisonment on a full-time basis (“the original decision”).[5]
[5] Ibid, pages 67 – 73.
In June 2019, the Applicant made representations seeking revocation of the mandatory visa cancellation decision.[6]
[6] Ibid, G11, pages 265 – 268; G12, pages 269 – 283.
On 28 November 2019, the Minister’s delegate decided not to revoke the original decision.[7]
[7] Ibid, G2, pages 11 – 13.
On 3 December 2019, the Applicant lodged an application for review of the delegate’s decision to the Tribunal.[8]
[8] Ibid, G1, pages 4 – 8.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(c)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(d)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (the Direction) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
MINISTERIAL DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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 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.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)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.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, 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.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
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.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but 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; and
e)Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(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 the seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction. In considering those paragraphs it will be helpful to first outline the Applicant’s offending and the evidence before the Tribunal relevant in particular to this Primary Consideration.
The Applicant’s Evidence
The Applicant is 24 years of age and was born in Fiji in October 1995. He has two older sisters and an older brother, as well as a younger step-brother and step-sister. His parents separated when he was very young. His mother subsequently travelled to Australia. His father remarried and the Applicant lived with his father, step-mother and siblings in Fiji.
The Applicant was verbally and physically abused as a child, particularly by his step-mother. His aunt removed him from that home when he was four or five years of age and he lived with his aunt and uncle for one or two years before returning to live with his father and step-mother. He later returned to live with his aunt and uncle as a teenager after living in the family home for seven or eight years. His brother and sister remained with his father and step-mother during the times he was removed from the home. He said that this was distressing and that he cried every night.
The Applicant’s mother returned to Fiji when he was aged approximately 14 or 15 years, and subsequently removed the Applicant and his siblings from Fiji to Australia. He thereafter lived with his mother, step-father, two sisters, brother and step-brother. He has a step-sister who lived with her mother.
When the Applicant left Fiji his father wrote him a letter saying he was not his son. This upset the Applicant. He no longer has any contact with his father. He described arriving in Australia as a culture shock but once in Australia he loved it and the opportunities it offered.
The Applicant was unable to attend a mainstream school. He went to TAFE, learnt English and completed Year 11. He did not complete Year 12 because of peer pressure. He was hanging around with older friends and not attending classes. He left school two to three months before completing Year 12.
The Applicant was then employed by his step-father for about two months welding and fabricating shelves, but his step-father fired him because of performance and attendance issues. The Applicant said he was lazy and did not turn up on time.
The Applicant then worked in the construction industry for about one year. He then studied and at the age of 20 years completed an Assistant in Nursing course with the intention of working in the aged care industry. However, the Applicant did not work in the aged care industry because he was unable to afford the cost associated with securing his certificate, which he said was about $2,000. He thereafter alternated work between the construction industry, fruit picking, and working on a farm that his mother was managing. He was not working at the time of his offence.
Prior to the night of the offence the Applicant would drink socially with a friend. He said he had a drinking problem and sacrificed time at work in preference to drinking, but that he was not addicted to alcohol. He and his friend would drink at his friend’s house as he did not want his mother to see him drunk. They did this about three times a week. They would drink a box of beer or bottle of whisky, and on occasions, both.
On the day of the offence the Applicant had been playing volleyball with his church youth group. His friends came to watch, including his girlfriend, CB. Whilst at volleyball there was some discussion about fitness training and one of the gentlemen in the group offered to train CB. She said she was interested. The Applicant had previously asked CB to allow him to train her but she had declined. Hence, when CB was discussing being trained by the gentleman the Applicant was not happy, but he did not react.
After volleyball, the Applicant’s male friends invited him to join them for a drink. They went to Woolworths, and purchased approximately three cartons of beer, a two litre box of wine and a bottle of bourbon. They also had some marijuana which they intended to smoke using a bong. They then went to a park.

CB turned up at the park unexpectedly. The Applicant asked her to ‘go home and chill’ because he wanted to be with his friends and have a ‘boy’s night’. CB became aggressive and said that he was not her boss; she wanted to be there and told him that he should leave. The Applicant said he thought CB would leave.
They started drinking at about 8.00pm. At about 8.30pm CB left but returned with her female cousins. He again asked her to leave but she refused and repeated her earlier comment. She said she came to drink and he could not tell her what to do. The Applicant told her that there should not be girls there. He explained to the Tribunal that he thought it ‘look so bad’. CB stayed but her cousins left.
There were a total of six people in the group drinking including the Applicant and CB. They remained in the park until about 4.00am or 5.00am the following morning. Over the course of the evening the Applicant said that he consumed approximately one box of beer, approximately half a two litre cask of wine or ‘goon’, part of a bottle of whiskey and three ‘bongs’ of marijuana.
At about midnight, the topic of fitness training was raised again by the same gentleman and CB agreed to be trained by him. This time, because he had been drinking, the Applicant became upset. He did not understand why CB would want this gentleman to train her in preference to himself. He agreed he was jealous that something may be going on between the gentleman and his girlfriend.
The Applicant became angry, he was not in control of himself and he walked away and started punching things including a tree, an electricity box, he also kicked a fence. He badly gashed his leg which was bleeding. He returned to the group for help with his leg but no-one took him seriously. CB was still there with the gentleman. There was an exchange of words. The gentleman asked the Applicant if he wanted to fight. The Applicant declined but after a while they fought. The Applicant could not remember what happened other than that the gentleman fell to the ground.
The Applicant recalled that sometime later that night CB pulled his hair. He did not know why. After that the offence occurred. He said after he assaulted his girlfriend he cried. He never did that before. He said he ‘did something really, really wrong’. It offended his values.
In cross-examination, the Applicant was asked how he would react now if the same situation arose. He said he would try to take care of CB, or he would leave her there and walk away and wait for her at the internet shop. If the gentleman said he wanted to train her, this would still make him angry but he would take a different approach if he was sober. He would then be clear minded. He acknowledged it was CB’s right to determine with whom she trains. He would still be upset because he never thought she would want to be trained by somebody else.
The Applicant was charged and pleaded guilty in the Local Court. Transcript of sentencing proceedings, dated 27 November 2018,[9] indicates that counsel for the Applicant was appearing on ‘fresh custody’ matters. I infer counsel was the court duty solicitor representing the Applicant on that occasion. The police prosecutor said that the prosecution did not have a proper file but only had the warrant file, and that the prosecution needed an original file. The prosecutor noted that there appeared to be ‘an AVO the other way’[10] which I infer was the Apprehended Violence Order (“AVO”) issued against CB in which the Applicant was the victim. Two matters were interposed to enable the prosecutor to locate relevant material and for a report to be prepared in relation to the Applicant.
[9] Ibid, G2, pages 26 – 29.
[10] Ibid, page
When the matter was dealt with a duty sentencing assessment report was then before the Learned Magistrate. That report was not before the Tribunal. It was apparent that the Applicant had pleaded guilty to the offences on 13 November 2018, and that he failed to attend court on 26 November 2018 when convictions were recorded. This failure to attend court, it was submitted, was because of a mix up with the dates for his court attendance. There was no challenge to the convictions for the two charges and the matter proceeded to sentence.
The police prosecutor made no submissions. It is not clear from the transcript what was the factual basis alleged by the prosecution upon which the Applicant fell to be sentenced.
Counsel for the Applicant made brief submissions which included that the Applicant had been the victim of violence when young; that he was not a violent person; that he wants to get help for his alcohol problem; that he attended Liverpool Merit office the Friday before the hearing but he was not a suitable candidate for that service and they gave him contact numbers for Alcoholics Anonymous (“AA”) and a Men’s Club which, it was submitted, in light of the pre-sentence report, might be beneficial given that alcohol fuelled his violent behaviour which it was submitted was ‘quite high in the range of object seriousness’[11]. The Applicant had no prior record for violence.
[11] Ibid, page 28.
The police prosecutor did not inform the court further about the earlier AVO issued against CB. There is nothing to indicate that the court was advised of the events in the park earlier that night, nor CB’s conduct towards the Applicant including her violence. To the extent that the Learned Magistrate had any factual evidence before her it appears in her sentencing remarks.
The Learned Magistrate said in sentencing that the offending was ‘a very serious example of a domestic assault.’[12] The Learned Magistrate summarised the offending. She said that after consuming a considerable amount of alcohol, which was not an excuse, the Applicant:[13]
…grabbed the complainant by the hair, he grabbed her wrists, dragged her to the ground causing bruising to her forearms and wrist and then he struck her by way of an open handed slap to her right cheek below her eye causing bruising. It is a serious example of assault.
[12] Ibid.
[13] Ibid.
The Learned Magistrate then said:[14]
It is clear enough that without some proper intervention Mr Qiolevu is a person who is likely to reoffend, whether that be as a result of his lack of insight in relation to domestic assaults, his cannabis use or his misuse of alcohol, so whilst the objective seriousness of the matter is such as would warrant a sentence of imprisonment, I am satisfied that the sentence of imprisonment is one that could be properly served by way of an intensive correction order.
[14] Ibid, page 29.
The Learned Magistrate warned the Applicant that should he fail to comply with the directions of community corrections he was liable to be required to serve his sentence in prison. The Applicant was referred to the sentencing remarks of the Learned Magistrate and the warning that she gave him should he reoffend. The Applicant said in evidence that he did not understand as much as he should have and at the time he was really scared.
Following his sentencing, the Applicant continued residing at his mother’s residence. He did not contact AA or the Men’s Club to seek professional help, but instead stayed at home and intended not to drink or go out and not to get into trouble. His relationship with CB continued and he would see her about three times a week. He commenced his ICO and attended two appointments with the community corrections officer but then did not go back. He said he did not then think it was serious if he did not go back to his correctional officer’s appointment. He explained it was his first sentence and albeit the transcript of proceeding refer to the Learned Magistrate warning him of the consequence should he failed to comply with the directions of community corrections, and the Applicant acknowledging he understood the consequence, he did not now recall that warning.
Following the Applicant’s failure to report, the New South Wales State Parole Authority made a Revocation Order dated 19 March 2019 in respect of the ICO and the Applicant then served the balance of his sentence in custody and thereafter, because of the cancellation of his visa, was detained in Villawood.
The Applicant said that until he went to prison he did not think that he required professional help to deal with his alcohol problem. He thought he could address his drinking habit himself. He started to believe he needed professional help when he was in prison and Villawood.
The Tribunal received from the Applicant two email communications relating to his enquiry with The Cabin[15] and Odyssey House[16] made on or about 10 January 2020 regarding, in particular, drug and alcohol rehabilitation. The Applicant noted the former required a deposit of $450 if he enrolled in that service. The Tribunal also notes that in the Applicant's Personal Circumstances Form he wrote in response to the question about having completed courses or programs that will help avoid further offending, ‘yes Ive (sic) taken courses which is education one of the important courses to take but I wasnt (sic) able to finish the rest due to me moving from prison to prison and I was given my ICO back’. [17] The Tribunal notes that the Applicant made an application for reinstatement of his ICO which was refused.
[15] Exhibit D.
[16] Exhibit E.
[17] Exhibit A, G2, page 51.
In cross-examination, Counsel for the Respondent challenged the Applicant as to the bona fides of his enquiry for professional assistance. He referred the Applicant to his failure to pursue AA and the Men’s Club after he was released pursuant to an ICO. It was noted that his latest enquiry with The Cabin and Odyssey House coincided with the date he filed his Statement of Facts Issues and Contentions and hence it was proposed that should his visa be reinstated, and he thereby avoid deportation, he would again not take up the opportunity for professional help. The Applicant conceded that in respect of The Cabin and Odyssey House inquiry he had left things to the last minute. He did not have the $450 for the deposit but had yet to speak his family about paying for that service. He said that service would only be enlivened if his visa is reinstated and he returned to the community. He explained that he drifted around in Villawood but after a couple of months started to make some enquiries about support. He renewed that enquiry about two months later, and after about four months after arriving at Villawood, he started to get professional assistance.
The Applicant also explained that there were others in Villawood that gave him some direction and assistance to try and get his visa back. He received advice about the benefits of having a certificate; he said he had attended two anger management counselling sessions prior to the hearing before the Tribunal. He said that after the Magistrates Court hearing he went home, stopped drinking and stopped smoking weed. He repeated that at that time he thought he did not need professional help. When asked what had changed about his attitude he said that his life changed being in jail and Villawood. He had been away from his relationship with CB and he had learnt that:
Not only god can always do for some - not only god can always do everything for you, but you should always do your part as well, and then that’s my part, me seeking professional help, and then god will do the rest.
Evidence of VS (older sister of the Applicant)
VS was born in Fiji in 1993 and provided to the Tribunal a letter dated 19 June 2019 in support of the Applicant[18]. She confirmed the contents of her letter were correct.
[18] Ibid, page 55.
Insofar as her evidence was relevant to Primary Consideration A, VC said that she and her siblings were born in Fiji and when her mother left the matrimonial home she and her siblings resided with her father and step-mother. VC corroborated the Applicant’s evidence with respect to their difficult upbringing and abuse, particularly by the step-mother. She said that her step-mother was abusive, would hit her and her siblings, but was more abusive towards the Applicant. She confirmed the Applicant was removed into the care of their aunt and uncle. She did not join him because she was very close to her father who she described as a being a good father until he married her step-mother. She confirmed that her father said that the Applicant was not his son. She confirmed that the living arrangement continued until her mother came to Fiji, collected them and brought them to Australia.
VC said that she now resides with her mother, step-father, husband and daughter (aged one year), older sister and her sister’s two children. VC said that her husband is a contract scaffolder often working away from home. She said that in 2018 she was pregnant with her child and not working. Her older sister was a full-time mother who looked after her two children. Prior to the Applicant being incarcerated he resided with them.
VC was asked what she understood happened with respect to the Applicant. She explained that he was supposed to report to police but failed to do so. Her brother and his partner did not mention much about what happened in respect of the assault. She said that before the incident he was not a big drinker, mainly drinking on weekends. He would drink quite a lot on Friday and Saturday. She knew he smoked but did not know if it was cannabis. She did not know that her brother drank alcohol and smoked cannabis to the level detailed by the Applicant in his evidence.
Evidence of CB (Applicant’s girlfriend and victim of DV)
CB was born in Fiji and came to Australia in January 2016. She had seen the Applicant in Fiji but they did not formally meet until they were in Australia. They started a relationship in April 2016.
CB said that in about early 2018 she underwent a medical procedure after which she suffered mental health problems and spiralled into depression. When asked to describe her relationship with the Applicant she said she was mostly drinking a lot. She would drink to get drunk and to pass out. CB said that on numerous occasions she had been violent towards the Applicant and that prior to the night of the offence he had not responded or reacted to her violence.
She said that two AVOs had been issued against her in respect of the Applicant who was the victim. The first was issued towards the end of 2017 and the second was issued immediately following the incident for which the Applicant was charged with assault occasioning actual bodily harm.
CB detailed the circumstance in which the first AVO was issued. She had been drinking at the pub. The Applicant came to take her home. She was drunk. CB said that she assaulted the Applicant outside the pub. Someone inside the pub telephoned the police. Police checked the CCTV, saw that she had punched the Applicant in the face and pushed him. They arrested her and she spent a night in the cells. They served her with papers to attend court; she pleaded guilty to common assault and an AVO was issued. The conditions of the AVO included that she was not allowed to be around the Applicant for a period of 12 hours before or after drinking, not to yell or verbally or physically assault the Applicant.
On the night of the offence CB said that she had been drinking. The Applicant was going drinking on his own with his male friends and he told CB not to come. She said that she disobeyed his request and she wanted a drink. The Applicant was upset when she showed up with two female friends. CB said that the group had two cases of Corona beer, a case of Woodstock rum and cola cans, two bottles of Jack Daniels bourbon and one ‘sack’ of wine which she explained was a two litre cask of wine.
CB said that the Applicant asked her to leave but she refused. She got drunk pretty quickly but was not sure how much she had had to drink. She said that during the course of the evening she had a conversation with one of the Applicant’s friends in which he offered to train her. The Applicant became upset and asked her to leave but again she refused. CB explained that the Applicant heard the conversation between her and his friend about training and that they made a plan for him to train her. However she said she never intended to train with this person. She corroborated the Applicant’s evidence that he had been asking her to allow him to train her. He was a fitness ‘freak’. She said that she knew the conversation about training would upset the Applicant. CB said that night she was trying to ‘push [his] buttons’. She was trying to get a reaction out of him and was avoiding him, not talking to him and trying to make him upset. She said that because of the state she was in she found it funny and liked the attention.
CB confirmed that the Applicant and his friend fought but she was not watching. All she remembered was a tussle and the group yelling at them to stop. She said that the Applicant walked off to let off some steam. She remembered him kicking something and when he returned he had a deep laceration in his leg which he cut on some tin. She said by then almost everyone had left and had gone to the train station to go to the beach. CB wanted to catch up with them. She was drunk and yelling at the Applicant that she wanted to go to the beach. She and the Applicant argued. The friend with whom the Applicant fought had left.
CB said that during the argument there were hurtful words said, and she then slapped the Applicant and he pushed her back and they fought. She was not sure how long the fight lasted but when it stopped the Applicant looked at her eye and he gave himself a shock. She said the Applicant wanted to go home and she was upset because she was injured. On the way home, CB said that she continued to fight the Applicant yelling at him and kicking him in the back. She threw a couple of punches at him. He did not respond.
They walked home and passed a police station. A police officer was outside, saw her black eye, and stopped them both. He asked her about her eye and the Applicant about his bleeding leg. She said the police officer searched their names and saw that she had an AVO issued against her. The police officer called an ambulance to take the Applicant to the hospital. CB said that whilst at the hospital two female police officers came and arrested her and charged her for breaking the AVO. Police located CCTV footage showing her kicking the Applicant in the back. She spent the night in the cells, was charged with common assault and breaching the AVO. She pleaded guilty to both charges and a second AVO in similar terms to the first, was issued. She did not attend court when the Applicant was dealt with.
CB said that in terms of their relationship the Applicant has stopped being controlling and she is sure that he realises that they gain nothing by trying to control each other or trying to make the other person jealous. The Applicant encouraged her to go to AA counselling and she used to go every week. She now only goes to counselling if she has the urge to drink. When that occurs the counsellor talks her out of wanting a drink. Her last drink was the night of the incident.
In cross-examination, CB said that she had the conversation with the Applicant’s friend about training to push the Applicant’s buttons. She knew it would aggravate him. She said that the Applicant had asked her to train with him before and that she knew ‘training would piss him off’. She said he was a fitness freak. She knew he wanted her to train with him as a partner. She said she knew he did not want her there. She said that on the night of the assault there were a lot of guys at the park and it did not look good for her to be drinking wine out of a ‘sack’ with them.
CB said that the Applicant did not become jealous easily and she had to work on him to get him riled up that night. She tried to make him jealous. She repeated that she knew it would upset him that she would train with someone else. She knew he might think something was going on between her and the other gentleman.

At the time of the assault, she said that everyone else in the group had left and they were going to the beach. She was not thinking clearly and she nagged the Applicant wanting him to go to the beach. The Applicant wanted to go to the hospital because he was bleeding. He finally said they should just go home. CB said that the Applicant was angry. She had been there since about 6.00pm and he had been telling her to go home. He had her best interests in mind because he knew there was an AVO. She said she usually does what he says because he knows what is best and that ‘he takes care of us both’. She went on to explain that when she gets drunk he knows he needs to send her home.
She said in cross-examination that there were two or three ways to walk home but they chose the shortest route which was about six to seven minute walk from the park to the house. She was yelling at him and he was limping and she hit and kicked him as they walked. He did not respond and he was upset because he had hit her in the eye. She did not smoke cannabis that night and did not know if the Applicant smoked cannabis. She said that she had been avoiding him that night as part of her deliberate attempt to upset him.
CB maintained that when she arrived at the park the Applicant asked her why she was there and she said she wanted a drink. The Applicant said she should take her drinks somewhere else and not to drink with them. She said that she liked to believe that he stayed to make sure she was okay. Normally he is sober and he wants to take her home. She has not seen him drink alcohol since the incident.
CB said that she had no interest in going to church. The Applicant’s Sabbath was on the Saturday and she would usually get drunk on Friday night and he would look after her. However, on Saturday mornings the Applicant and his family would wake her up, give her clothes and she would go to church with him. She said that both she and the Applicant drifted off from the church but believed he has returned to his church.
In cross-examination, CB reflected on the assault. She said:
No, I’m not trying to make him look like he’s an angel and I’m not trying to make any excuses for his behaviour that night because there is no excuse for his behaviour that night and that’s something that he’s going to have to live with for the rest of his life. When I said in my letter that we shared equal blame, I didn’t say it as a victim standing by her perpetrator. I said it as someone who pushed him and pushed him to his breaking point.
She was then asked what she meant when she said she “pushed him” to his breaking point. She responded:
He had never hit me before but there have been so many times where I have punched him in the face or kicked him or thrown things at him. I was always acting violently towards him expecting a reaction out of him and he always chose not to fight back until that night. I guess I just really did it that night.
Evidence of SFC (The Applicant’s Mother)
SFC provided a letter to the Tribunal.[19] Her evidence was assisted by the interpreter when required.
[19] Ibid, page 54.
SFC corroborated the Applicant’s evidence about his life in Fiji. She said that she returned to Fiji to collect her children and, following a court case about custody, she brought her children to Australia.
She said the Applicant was a good student until Year 11. He participated in the church and was in a church youth group. They would socialise, door knock, offer support to the community by visiting people and offering bread and milk.
When at home she said he could be stubborn but that, she believed, was because of the way he had been brought up. He changed when around the age 17 years. This, she said, was because of the people he was involved in. He lost his way with the church but has now found his way back since SFC has been visiting him in prison.
In cross-examination, she said the Applicant was drinking about once a week. When he was drunk you could hardly tell but you could smell the alcohol. She knew he smoked and that it was possible that he smoked marijuana.
SFC remembered the Applicant going to the Merit Office to get help. She was sure he got help because he mentioned it. She went to Fiji and when she returned the Applicant was in prison.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that… violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to 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)…
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 is in immigration detention … is serious …
The offence of assault occasioning actual bodily harm in a domestic violence setting is plainly serious. Paragraph 6.3(3) makes it very clear that a non-citizen who perpetrates violence against women, children or vulnerable members of the community should generally expect to forfeit the privilege of remaining in Australia.
The Respondent in paragraphs [22] and [23] of his Statement of Facts Issues and Contentions (SOFIC’s) referred the Tribunal to comments of courts and of this Tribunal in respect to domestic violence namely:
22.Domestic violence has (with respect, rightly) been described variously as a "scourge"[20], a "plague"[21] and a "pernicious blight"[22] upon the community. As Senior Member Puplick explained in Mendoza and Minister for Immigration and Border Protection:[23]
"The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically."
23.In XFKR and Minister for Immigration and Border Protection, Deputy President Kendall put it in the following way:[24]
"The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated."
[20] Ali and Minister for Home Affairs [2018] AATA 2512, [113].
[21] R v J.T. [2007] NSWDC 377, [1].
[22] Slynt & Slynt [2017] FamCA 812, [1].
[23] [2018] AATA 686, [48].
[24] [2017] AATA 2385, [45].
The Tribunal agrees with and adopts those comments relating to domestic violence.
The Learned Magistrate rightly regarded the offence as serious. The Applicant, to his credit, accepts that his offending was serious. The Applicant has never sought to diminish the seriousness of his conduct or his culpability in committing the offence. He did not, in evidence or in his Personal Circumstance Form, refer to the events of the night and the conduct of CB. He accepted responsibility for the incident. In his Personal Circumstance Form where he was invited to explain his offending he said:[25]
At the time of the offence I had been heavily under the influence of alcohol and had been going through a rough patch with my partner. I would have never done what I did if I was in the right state of mind, I would have never lashed out in a way that had made me regret. I have stopped drinking since, and have recognised and understand that my excessive drinking had a huge impact on my decision making and also following the wrong crowd.
[25] Exhibit A, G2, pages 46 – 53.
However, at paragraph [19] of the Respondents SOFICs it reads:
The Applicant’s offence was a serious example of an assault, occurring in a family violence context against his partner. The assault was not a simple tussle or anything of that nature. Magistrate Holdsworth described it as follows:[26]
“Mr Qiolevu had been consuming alcohol, it would appear, a considerable amount of alcohol but certainly the consumption of alcohol is not an excuse for violence against anyone, let alone a loved one. In relation to this matter Mr Qiolevu grabbed employment by the hair, he grabbed her wrists, he dragged her to the ground causing bruising to her forearms and wrist and then he struck her by way of an open handed slap to her right cheek below her eye causing bruising. It is a serious example of assault.”
[26] Ibid, pages 24 – 25.
The Respondent’s SOFIC’s in particular in so far as it was submitted that the assault was not a simple tussle or anything of that nature is not, having now heard the evidence, an accurate reflection on what occurred that night.
There was a large body of probative evidence that was before the Tribunal that was not before the Learned Magistrate, which goes to the question of the weight to be given to, and the nature and seriousness of the Applicant’s conduct. That evidence, in particular from CB, detailed the history of their relationship including her previous assaults upon him resulting in an AVO in which the Applicant was the victim.
It is noteworthy that in proceedings before the Learned Magistrate, there was, within the police prosecutions brief, reference to an AVO already issued against CB and which corroborates CB’s evidence that she had previously been violent towards the Applicant; yet that evidence does not seem to have been investigated by the police prosecutor. It is also troubling that the police arrested CB on the relevant evening, kept her overnight in the cells, charged her with assault and breach of AVO to which offences she pleaded guilty and issued a second AVO; yet it would appear those facts were not presented to the sentencing court. Further, it is not clear upon what basis the Applicant’s counsel made the submissions about the seriousness of the offending. The focus of the proceeding seems to have been on the actions of the Applicant alone and not the surrounding circumstances of the offence.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(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).
There can be no doubt that should the Applicant engage in further offending of a same or similar character that the harm to the victim would potentially be physical harm, psychological harm or both.
In considering the likelihood of the Applicant reoffending, the Tribunal has had regard to the comments of the Learned Magistrate referred to above namely that without proper intervention the Applicant was a person who was likely to reoffend. That remark was rightly made based on the submissions by defence counsel and the limited evidence before the court.
However, the Learned Magistrate did not have before her the background to the offending, including the Applicants relationship with CB, CB’s prior violence and AVO, the circumstances that unfolded during the evening of the offence and the conduct of CB that was directly relevant to the commission of the offence. There is additional probative evidence before the Tribunal relevant to the consideration of the risk of reoffending.
The Respondent’s submissions were thorough and detailed. The Respondent urged the Tribunal to take care in accepting that the Applicant was genuine when submitting his intention to seek professional help for his alcohol consumption. Counsel reminded the Tribunal that upon his release upon on the ICO, the Applicant did not take up the opportunity to receive help from AA or the Men’s Club. It was also clear that the Applicant had only, at or about the time he filed his SOFIC’s, engaged with The Cabin and Odyssey House. Accordingly, the Respondent submitted the Applicant was not genuine when saying he intended to seek professional help.
The Respondent referred the Tribunal to Direction 79 and the relevant criteria for the Tribunal consideration. The Respondent submitted this was a serious offence of domestic violence against a woman. Counsel rightly acknowledged that CB was a truthful witness but nonetheless submitted that given the Applicant’s abuse of alcohol there was an unacceptable risk of reoffending. The Respondent submitted that Primary Consideration A ought to weigh heavily in favour of the Applicant’s visa cancellation.
Conclusion: Primary Consideration A
This was an isolated offence of violence committed by the Applicant against his girlfriend which must be viewed against a background of unique circumstances. The Applicant was an honest witness. He had a basic grasp of the English language, but on occasion he clearly misunderstood the question being asked of him. It is not surprising that the Applicant said that he did not understand the seriousness of his failure to attend an appointment with a community correctional officer which gave rise to the revocation of the ICO; or that he does not now recall the warning given to him by the Learned Magistrate.
He was, in many respects, naïve and lacking in maturity, which may be explained by his personal circumstances and difficult upbringing prior to coming to Australia. That does not however, excuse his non-compliance with the ICO.
The Applicant’s sister was also an honest witness. She also had a basic understanding of the English language, but on occasions required the assistance of the interpreter. She confirmed the difficult family background from which she and the Applicant came. I accept her evidence. She corroborated the Applicant’s evidence that he was a victim of violence which required him to be removed from his father’s residence and that he was brought up by his aunt and uncle until he was approximately 16 years.
The Applicant’s girlfriend CB was also an honest witness and very frank in explaining to the Tribunal the difficulty she had in her life following her medical procedure and the impact that had upon her. There was no evidence from a medical practitioner that corroborated her medical procedure or that she was suffering from a mental health condition at that time. The Tribunal had evidence independent of CB, and contained in the transcript of proceedings, which corroborated that she had been issued with an AVO which arose from the occasion when she assaulted the Applicant outside a pub and was charged with assault. The Tribunal accepts that following her medical procedure she became depressed and often drank to excess with the deliberate intention of both getting drunk and passing out.
CB was a very articulate young lady who had a good command of English and did not require the assistance of an interpreter.
There were consistencies in the evidence of CB and the Applicant as to the sequence of events that night including what occurred at the park leading up to the offence. As to those inconsistencies I prefer the evidence of CB. In particular, that at the time of the offence the other members of their group had left. I also accept that CB and the Applicant argued, she slapped him and then the Applicant pushed her and they fought.
The Tribunal accepts that during the 12 months preceding the relevant offence, CB was supported by the Applicant who would come to her aid when drunk and ensure that she remained safe. Further, the Tribunal accepts that during the preceding 12 months she, on occasions, assaulted the Applicant when drunk but he never retaliated.
The events on the night of the offence were another occasion when CB breached the AVO, drank to excess and was in the company of the Applicant. Hindsight clearly indicates that the Applicant should have walked away and left her with his group of friends. Given the love and support that he had been giving CB in the preceding 12 months, particularly surrounding her mental health condition and alcohol abuse, it is understandable that he remained. He endeavoured to persuade her to go home. She refused. In so far as CB said that she liked to believe that the Applicant remained to ensure she was safe, this was consistent with his conduct in the past and is supported by the history of their relationship over the preceding 12 months. I accept that was the case.
It is of particular relevance that CB’s attitude that night was to push the Applicant’s buttons, and engage in a conversation with his friend about training, with the intention of upsetting the Applicant and making him jealous. Her conduct, fuelled by alcohol, involved the deliberate aggravation of the Applicant for the purpose inciting a reaction. She so aggravated him that it led to the Applicant having a fight with a friend. The Applicant had the good sense to walk away and take out his frustrations by punching a tree, an electricity box and kicking a fence, and calming down before he returned to join CB. However, she continued to verbally abuse the Applicant and then assaulted him which, finally, in the early hours of the morning, brought about the reaction which gave rise to the offence. The fact that on this occasion and for the first time the Applicant reacted can be explained because he too, was affected by alcohol. This gives explanation to his retaliation but does not excuse it.
It is also relevant that when the Applicant and CB left the park and were returning home, CB continued to abuse him and kick and punch him. Her conduct led to her being charged with assault and breach of AVO, to which offences she pleaded guilty and entered into a second AVO in similar terms to the first.

If this offence occurred in circumstances where the Applicant violently assaulted CB when under the influence of alcohol without provocation, the Respondent’s submission that this Primary Consideration ought weigh heavily in favour of revocation of the Applicant’s visa would have force. But given the unique circumstances of this offence I reject that argument.
When viewed in light of the additional evidence before the Tribunal, albeit the offence was serious, it was not to the level of seriousness of a similar offence occurring in unprovoked circumstances.
I accept that the Applicant, in his naivety, thought he did not need help with his alcohol related issues. I accept that he now acknowledges that he requires professional support and he has made steps to pursue that support, albeit not as expeditiously as he might have. He is a young man who has not come from a sophisticated background and I accept the system in which he found himself was daunting. I accept that he will continue to seek help should he be returned to the community.
I am reminded of the evidence of CB, to which I referred at paragraph [79] of this Decision, and which bears repeating. Namely, that CB did not make excuses for the Applicant’s behaviour, but acknowledged that her behaviour pushed him to ‘breaking point’ that night.
I accept that the Applicant has ceased consuming alcohol and has returned to his faith and the church. I also accept that CB has stopped consuming alcohol and has sought help from and is assisted by AA. Her cessation from alcohol consumption is particularly important because she and the Applicant remain in a relationship.
Having regard to the evidence before the Tribunal, I find that Primary Consideration A is to be given less weight that would have otherwise been the case if the offending were an unprovoked alcohol fuelled act of domestic violence. I accept the offending occurred as a result of persistent provocation by CB and that both CB and the Applicant were affected by alcohol during the relevant period. But for the unique circumstances on the relevant evening, the Applicant has never displayed violence to anyone, and in particular, has never displayed violence towards CB nor retaliated to her earlier acts of violence towards him. I am satisfied that the risk of reoffending is low.
Accordingly, I give Primary Consideration A moderate weight in favour of the cancellation of the Applicant’s Visa
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the 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.
The Applicant’s daughter G
The Applicant has a daughter, G, aged four years who was born to a relationship with a Fijian lady. The Applicant’s relationship with G’s mother ended when G was approximately six months of age. During the relationship, they had been living in the Applicant’s mother’s home. Following their separation, G and her mother moved to a residence that was about a nine hour drive from the Applicant’s home.
The Applicant and his mother would travel to see G once a month and stay for approximately three days so that the Applicant could be with his daughter. The Applicant and his mother would take G to the park and on occasions he took her to the park alone. He mainly played with G when he was with her. On occasions, albeit not frequently, G and her mother would come to the Applicant’s home and stay for about three days. The Applicant estimated that he spent a total of approximately one week per month with G. This continued for two years.
The Applicant said that G’s mother found a partner and moved to Queensland in approximately December 2018. He said he last saw G in January 2019, when G and her mother visited for about five days. He has not seen G since then, nor has he had contact with G or her mother. His sister, VS, has been contacting G and her mother. The Applicant has, through his sister, asked about sending letters but his former partner has not been in contact. He explained that his former partner has visa issues and fears deportation should the authorities determine her whereabouts. He has continued to attempt to locate G and renew his relationship with her. His siblings are currently making those inquiries for him.
In cross-examination, the Applicant said that G’s mother was unemployed but had a partner who was working. The Applicant did not know what contribution that partner was making towards G’s day to day welfare and support. The Applicant continued to send his former partner $200 to $250 per fortnight by bank transfer until he was imprisoned. He no longer has her bank details.
The Applicant was referred to paragraph [10] of his SOFICs, in which he said his role as a father was to provide for his daughter and that her mother is an unlawful non-citizen and he expressed uncertainty about G’s welfare should his former partner be detained or deported. He said in evidence that he was concerned that if detained ‘my daughter to end up in nowhere’. He said it was his intention to search for his daughter including by electronic medium, such as Facebook and the internet, albeit it was his fault he had not tried to seek her out already. If his visa is reinstated this would help in enabling him to pursue those inquiries.
The Applicant said he did not know if G’s mother’s new partner was performing the role of step-father, but from his own experience with his step-father, said it was not like the love of a natural father.
In response to questions from the Tribunal, the Applicant said he wants to look after G. His former partner was in Australia on a protection visa which was cancelled at about the time of G’s birth. Her parent’s visas were cancelled and they were sent home in 2014. The Applicant said that he spoke with his former partner’s brother when in Perth, but the brother did not know her whereabouts.
SFC said in respect of her granddaughter, G, the Applicant tried to be a good father but did not provide the best because G was far away. She said he could do a lot more, namely bring G home and look after her. She said that she believed G should be living with the Applicant rather than with her mother because the mother was an illegal immigrant and it was best that G stay with him. She confirmed the Applicant’s evidence that the last time she saw G was last year..
SFC said that she had been trying to determine the whereabouts of G. She said her daughter VS knew the Applicant’s former partner and she had been asking VS to find out where she was. She knew they had spoken by telephone. SFC overheard they were living in Victoria but also knowledge in that she had recently heard she was living in Queensland.
Other children
The Applicant said that prior to being imprisoned and then detained; he had been residing in his family home together with his two older sisters and their children. His eldest sister has two daughters, the first aged approximately four years who was born in Fiji, the youngest aged approximately one year born in Australia. His sister VS also has a daughter aged approximately one year.
In respect of his two youngest nieces, the Applicant said he looked after them a bit. He, took care of them to help their mothers, he fed them, changed them, played with them and sang them songs. As for his older niece, he played with her, taught her to read with the alphabet and sang with her. In relation to the older sister’s children he was helping them for about two years prior to being taken into custody.
The Applicant also has a nephew aged two years, born to his older brother. His nephew did not live with him but he would see him when he came to visit from time to time. He has also helped to look after his nephew when his brother was imprisoned. After his brother was released from custody he had far less involvement with his nephew. His brother now resides in Melbourne. The nephew and his mother reside in Adelaide but sometimes come to Sydney where they meet at his mother’s home.
The Applicant also said that he has a step-brother who was about 16 year of age and who lived with them in the family home. The Applicant said that they treated each other as brothers and that because the Applicant was older than his step-brother, he looked up to him as an older brother and the Applicant also treated him like a brother. The Applicant also has a younger step-sister who is at school and does not reside in the family home.
VS gave evidence that corroborated the Applicant in respect of the family members residing in the same home and the contribution he made to the care of his nieces. She described him as a good uncle.
Conclusion: Primary Consideration B
The Tribunal is required to consider the interests of each child separately. The interests of the three nieces for whom the Applicant has given care and support from time to time are the same interests and I will deal with them together.
The Applicant has provided care in the nature of babysitting and relief support for his three nieces leading up to his incarceration. It was the care and support one might expect from a young uncle to help a family member when necessary. In respect of his two younger nieces, that period of support must have been short given his breach of the ICO on or about 19 March 2019 and thereafter remaining in custody and detention. The Tribunal accepts that if the Applicant were to return to the community he would live with his mother, his siblings and nieces and continued to provide similar care from time to time when necessary.
Should the Applicant return to Fiji there would be a reduction in the closeness of the relationship with his nieces because of his inability to be with them and interact with them on a daily basis. Additionally, he would not be able to provide personal care to his nieces in support of his sisters. That being said, he would still be able to communicate with them, including via electronic media. There are also other members of the household, as well as his sisters’ spouses, who would play a parenting and supporting role for the children during their minority. His mother and step-father would also be in a position to play the supporting role of grandparents. Accordingly some albeit slight weight should be attributed to the best interests of his nieces.
The Applicant has not provided any evidence that suggests he has played any significant role in relation to the care of his young nephew or younger step-sister. However, again there would be no impediment should he be returned Fiji in communicating with them including through electronic media. There would, however, be the loss of opportunity to develop his relationship with his nephew and to that extent it would be in that nephew’s best interests that the Applicant’s visa cancellation be revoked. There would also be the loss of renewing the bond with his younger step-sister, albeit I note she is now 16 years of age. Once again, only slight weight could be attributed to the interests of each of the nephew and younger step-sister.
The Tribunal accepts that the Applicant played a parenting role in relation to his daughter for the first six months of her life and after separation he continued to engage with his daughter as much as possible by travelling once a month to spend time with her and also in the company of his mother. The Applicant did not, and has never, held a provisional or full driver licence.
The Tribunal also accepts that the Applicant continued to provide financial support for G, which ceased when he was imprisoned. So far as the Applicant has expressed the intention to locate G, renew his relationship with her and that he wants to support her into the future, and more particularly wants to have the care of G in the future, the Tribunal accepts that that is his true intention.
Insofar as the Applicant has given evidence, corroborated by his mother, that his former partner is an illegal immigrant, this evidence has not been challenged. What will happen in terms of G’s mother remaining in Australia is speculative. However, it is in the best interests of G that the Applicant remain in Australia and that if G’s mother were deported, that she be in the ongoing care of the Applicant and his close-knit family. At the very least, it is in G’s best interest that the Applicant remain in Australia to continue to engage with her and provide monetary parenting and psychological support during her minority.
Having had regard to the whole of the evidence and the interests of the respective children referred to above, and in particular the child G, Primary Consideration B weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)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.
Further, paragraph 6.3(5) and (7) of the Direction provides:
(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 for only 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.
…
(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.
The matters relevant to this Primary Consideration are outlined in the evidence to which I have referred under heading Primary Consideration A and I will not repeat them.
The Tribunals approach to considering this Primary Consideration was addressed in the decision FYBR v Minister for Home Affairs[27]. Clause 11.3 expressed a deemed community expectation that all persons who have committed a serious criminal offence giving rise to character concerns and have their visa application refused. Hence, it is the expectation of the Australian community that the Applicant obey Australian laws and that expectation has not been met because, by his offending and being sentenced to imprisonment, he does not pass a character test pursuant to s 501(6)(a) of the Act. It is not for the Tribunal to make its own assessment of community expectations. The nature of the character test is such that the deemed expectation will arise in most cases as it does here.
[27] [2019] FCAFC 185 (“FYBR”).
However, as Charlesworth J said in FYBR at[76]:
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 in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations”... The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
The weight to be given to this primary consideration having regard to the principles referred to, in particular, paragraphs 6.3(5) and 6.3(7), are to be determined in the operation of the discretion of the Tribunal. Albeit the Applicant did not pass the character test pursuant to s 105(6)(a) of the Act which, must weigh against the revocation of his visa cancellation, it remains for the Tribunal to determine what weight is to be given to this Primary Consideration.
Conclusion: Primary Consideration C
The Applicant suffered a difficult upbringing when living in Fiji and was subject to verbal and physical abuse, particularly from his step-mother. This ongoing abuse resulted in him living with his aunt and uncle for an extended period of time and away from his older siblings, until he came to Australia. He had to learn a new language and only completed Year 11 at school. As I have referred to above, the circumstances of his offending occurred in extraordinary circumstances. He had conducted himself honourably in dealing with his partner who had alcohol and violence issues until the evening of the commission of the offence. CB’s conduct was a major contributor to the commission of the offence and the fact that the Applicant had consumed a large quantity of alcohol on this occasion resulted in him reacting to her intimidation and violence in a way that he had not previously reacted.
The Applicant is a young man who since leaving school has generally been employed in the construction industry, fruit picking or working on a farm. He has contributed to that extent to the Australian community. He has a close-knit and loving family. He has a young daughter who he loves and in relation to whom he provided support as outlined above prior to being imprisoned.

The findings of the Tribunal as referred to in Primary Consideration A are relevant in considering the operation of the Tribunal’s discretion in determining the weight to be given to this Primary Consideration and need not to be repeated.
The Tribunal is satisfied that this is not a matter where no weight at all should be afforded to the community expectations however the weight the Tribunal would otherwise give to this Primary Consideration is substantially reduced when having regard to those matters that operate upon the Tribunal’s discretion.
In the unique circumstances of this matter it is appropriate that the weight to be given to this primary consideration ought to weigh slightly in favour of the Applicant’s visa cancellation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, 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; and
(e)Extent of impediments if removed.
It is only Other Considerations (b) and (c) that are relevant to this Applicant. There has been no evidence raised that enlivens, in any respect, the balance of the Other Considerations, and there is no other consideration arising on the available evidence. The Tribunal will therefore address these Other Considerations (b) and (c) in turn.
Other Consideration (b): Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
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 Australian indefinitely).
The Applicant arrived in Australia aged 17 years and resided in Australia for approximately seven years prior to committing the offence.
Since leaving school the Applicant has generally been engaged in casual employment, albeit at the time of the offence he was not working.
The Applicant’s family including his mother, stepfather, siblings, nieces and nephews, his daughter G, and partner CB all reside in Australia. His father disowned him at about the time he moved to Australia. His step-mother verbally and physically abused him which resulted in him spending much of his life when in Fiji living with his aunt and uncle.
The Applicant said that insofar as he had relatives in Fiji, and in particular his aunt and uncle, he has not seen them since he came to Australia with his mother. He said that he appreciated that his aunt and uncle had brought him up, but was clearly distressed when talking about the difficulties he had living with them in Fiji. Through the interpreter, he said it was difficult living with his aunt and uncle. In evidence, the Applicant said that he has not been in contact with them for a number of years and that if he were to return to Fiji, and they were to know about his offending, that they would not accept him. The Applicant acknowledged he probably still has some relatives in Fiji aside from his aunt and uncle, but he does not know who they are and has no relationship with them.
The Applicant previously had a strong relationship with his church. He was involved in church group discussion and prayer, church sports, choir, and providing help and support to less fortunate members of the community. He would go to aged care facilities, sing and talk to the aged. He would engage in Bible activities. This continued for approximately five years. To some extent, at the time of the offence he still had links with the church. Prior to drinking on the evening of the assault, he had been competing in church youth volleyball.
The Applicant has now renewed his faith and returned to the church which was corroborated by his mother in her evidence.
The Applicant has maintained some contact with school friends in Fiji. Those friends have had difficulty obtaining employment and the Applicant does not believe that there is any employment opportunities available to him should he be returned to Fiji.
The Tribunal has received numerous letters from members of the Applicant’s family, as well as a church leader that corroborates those ties to the Australian community. In particular, the church leader described the Applicant as an active participant in youth programs, sacrificing a lot for the betterment of others. He said he was a loving and caring young man.[28]
[28] Exhibit A, G2, page 65.
The Respondent accepts that the Applicant had those ties to which I referred but noted that the good he brought to the community should be balanced against the Applicant’s heavy drinking in 2018, in particular that he got drunk three times a week. Counsel did not reject the Tribunal’s proposition that his drinking did not affect the community but submitted it affected him. Nonetheless, Counsel submitted that it was his drinking and social behaviour that led to the waning of his interest in his church albeit that interest has subsequently been renewed. Counsel accepted that his drinking did not erase his positive contribution to the community.
The Respondent concedes that this Other Consideration weighs in favour of the Applicant but submits however that it is heavily outweighed by Primary Consideration A and C.
The Applicant submitted that everything he has is in Australia. He supports those children who are members of his family. He submits that his mother will suffer as will his siblings, girlfriend and daughter if she were to be left behind. His priorities are his daughter, family, and siblings. He said in closing submissions, albeit not in evidence, that he is looking at pursuing work in steel fixing, he intends to do a course (which the Tribunal infers is in the steel fixing discipline) and to acquire his own house and for his daughter to come and live there with him.
Conclusion: Other Consideration (b)
The Applicant has strong ties both familial and social to Australia and Australian community. His mother stepfather and extended family members including his daughter permanently reside in Australia.
The Tribunal accepts that the Applicant has very limited ties to Fiji and it’s residents. He has not communicated with his father since he left Fiji. There is no evidence to suggest that his aunt and uncle will, should they know about his offence, have anything to do with him as he suggested. The Tribunal does not accept that this is the case and is merely speculative on the part of the Applicant. Nonetheless, the overwhelming evidence is that the Applicant has strong and enduring ties with his family and the Australian community.
This Other Consideration weighs heavily in favour of the Applicant and the revocation of his visa cancellation
Other Consideration (d): Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
(1)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.
The Applicant is a young and healthy man who resided in Fiji until aged approximately 17 years. There is no evidence before the Tribunal that there is any language or cultural barriers to the Applicant should he return to Fiji. There is no evidence about any social, medical or economic support available to him in Fiji. There is no evidence about the availability of work in Fiji within the construction industry or otherwise, save for that evidence from the Applicant in relation to conversations he has had with friends who continue to live there.
The Respondent submits that there is no indication that the Applicant will struggle should he return to Fiji however it is rightly acknowledged by the Respondent that he will suffer some emotional hardship. It is also rightly conceded that the Applicant will have some difficulty in re-establishing himself in Fiji but in time he has the ability to return himself to the same or similar position that he enjoys in Australia.
The Applicant submitted that the standard of living in Fiji is not up to the standard enjoyed in Australia. He said that Fiji was a place for vacation but not to live. He submitted that even if he had a certificate, generally he would not be able to get a job. He submitted that he will not be accepted. He submitted that he has goals and career opportunities to pursue in Australia.
Conclusion: Other Consideration (d)
The Tribunal generally accepts the Respondent’s submission with respect to the Applicant’s age and health insofar as they relate to the Applicant’s impediments should he be returned to Fiji. There is no independent evidence before the Tribunal about the current economic status in Fiji and the ability or inability of the Applicant to gain employment.
Nonetheless the Tribunal accepts that there will be difficulties for the Applicant in adjusting to life in Fiji and to gain employment immediately upon his return. Further, the Tribunal accepts that the separation from his family, and in particular his daughter, will impact upon him psychologically and give rise to a level of emotional hardship.
Accordingly, having regard to all of the evidence, the Tribunal gives moderate weight to this other consideration in favour of the Applicant and the revocation of his visa cancellation.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the character test as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs moderately in favour of the Respondent;
(b)Primary Consideration B weighs heavily in favour of the Applicant;
(c)Primary Consideration C weighs slightly in favour of the Respondent; and
(d)The combined weight of the Primary Consideration B, which weighs heavily in favour of the Applicant, together with Other Considerations (b) and (d), which respectively weight heavily and moderately in favour of the Applicant, are such that they outweigh Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction; they do weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BC Subclass 100 Partner visa be revoked.

I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.....................[Sgnd]................................
Associate
Dated: 20 February 2020

Date of hearing: 3 & 4 February 2020

Applicant: Self-represented

Advocate for the Respondent: Mr Oliver Morris, Clayton Utz

[2020] AATA 255

20 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Date of hearing:	3 & 4 February 2020
Applicant:	Self-represented
Advocate for the Respondent:	Mr Oliver Morris, Clayton Utz