Ratu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3448
•9 September 2020
Ratu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3448 (9 September 2020)
Division:GENERAL DIVISION
File Number: 2019/0669
Re:Maikeli Ratu
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:9 September 2020
Place:Sydney
I find that the preferable and correct decision is to affirm the mandatory cancellation and to decide that the applicant’s visa remains cancelled.
..........[sgd]..............................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – domestic violence – dispute as to primary facts – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Migration Act 1958 (Cth)
CASES
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Keane v Police (1997) 69 SASR 481
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; 101 FCR 20
Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
9 September 2020
INTRODUCTION
On 6 November 2017, the applicant pleaded guilty to three offences before the Burwood Local Court: one count of reckless grievous bodily harm (dv); one count of contravene apprehended domestic violence order, and one count of reckless wounding (dv).[1] The magistrate imposed an aggregate sentence of one year and 11 months imprisonment for the three offences, with a non-parole period of 18 months.[2]
[1] Bundle of documents (Bundle), 317.
[2] G19, 82, para [3].
On 28 February 2018, the District Court, on appeal, reduced the sentence to an aggregate sentence of 18 months imprisonment with a non-parole period of seven months. The parole release date was adjusted to 4 June 2018.
On 13 March 2018, a delegate of the Minister, acting under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act), cancelled the Class BS (Subclass 801) Partner visa held by the applicant until that date, on the ground that by reason of the convictions, the applicant failed the character test.[3]
[3] G2, 18.
On 4 February 2019, a delegate of the Minister decided, under subsection 501CA(4) of the Act, not to revoke the cancellation (the reviewable decision).[4]
[4] G2, 18.
The applicant applied for review to the Administrative Appeals Tribunal (the Tribunal), which affirmed the decision on 29 April 2019.[5] On 18 October 2019, the Federal Court set aside the Tribunal’s decision, and remitted the matter for reconsideration by the Tribunal.
[5] Bundle, item 15.
The Court recommended that the matter be heard by a different member, given the strong adverse findings of fact made by the original sitting member. The hearing took place before me on 23 March 2020.[6]
[6] See Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710, per Griffiths J, [114].
LEGISLATIVE PROVISIONS
Under subsection 501(3A) of the Act, the Minister must cancel a non-citizen’s visa if the Minister is satisfied that the non-citizen does not pass the character test, because the person has a substantial criminal record, having received a sentence of imprisonment of 12 months or more; and 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. A decision under subsection 501(3A) is not reviewable by the Tribunal: see paragraph 500(4A)(c) of the Act.
Under subsection 501CA(4) of the Act, 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 s 501); or (ii) that there is another reason why the original decision should be revoked.
If the delegate of the Minister decides under subsection 501CA(4) not the revoke the cancellation, an application may be made to the Tribunal for review of the decision: see paragraph 500(1)(ba).
The decision must be revoked if the Tribunal, standing in the Minister’s shoes, is satisfied either that the person passes the character test (as defined by s 501); or that there is another reason why the original decision should be revoked. In subsection 501CA(4), ‘may’ is to be interpreted as ‘must’.[7]
[7] If the conditions of s 501CA(4) are satisfied then the mandatory cancellation decision must be revoked: see YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, per Collier J, [31].
The question of whether a person passes the character test is a matter upon which a finding of fact must be made by the Tribunal. However, as a matter of law, a person does not pass the character test if he or she has a ‘substantial criminal record’: paragraph 501(6)(a); and a person has a ‘substantial criminal record’ if he or she has been sentenced to a term of imprisonment of 12 months or more: subsection 501(7). Therefore, as a matter of law, a person sentenced to a term of imprisonment of 12 months or more has a substantial criminal record and does not pass the character test.
THE PRESENT HEARING
In February 2020, the applicant requested to be repatriated to Fiji because his 13 year old son was in hospital in Nadi with measles.[8] He was duly removed from Australia and went immediately to his child’s bedside in Nadi.
[8] Transcript, 23 March 2020, 30, [45].
By 23 March 2020, when the hearing before the Tribunal took place, he was living in a remote and tiny village of Vilakudi, on the island of Vumikodi. The hearing was conducted by telephone, there being no computers or videoconferencing facilities in the village. The mobile phone coverage in the village was very poor. The signal kept dropping out during the hearing.
Moreover, the applicant was not able to access documents other than on his mobile phone. He did not have printed copies of the relevant materials. He did not have access to a computer or a printer. The nearest post office with such facilities was many hours away by foot, jeep, and ferry. As he put it, there was no road past his door.
To make matters worse, the applicant was self-represented. He said that there had been a lawyer in Australia set to represent him, but in any case, he could not now arrange or afford a lawyer. He did not ask for an adjournment to obtain legal representation.
In administrative proceedings, there is no doctrine equivalent to that of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, where a trial may be stayed in the interests of justice where a person has no legal counsel and is charged with a serious indictable offence.[9] The Minister’s representative is of course expected to act as a model litigant; this mandate applies with maximum force when the applicant is unrepresented.
[9] See Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; 101 FCR 20.
The Tribunal is obliged to do all that it can to mitigate such impediments to a fair hearing. There were no practical means available to the Tribunal to secure a more perfect hearing, given where the applicant was living. The hearing extended over the entire day with multiple interruptions due to the technology, or absence thereof, and I acknowledge the fortitude of both my associate and the respondent’s solicitor, and of course, the applicant, in dealing patiently with these challenges.
MATERIALS BEFORE THE TRIBUNAL
The applicant’s evidence consisted of:
(a)Bundle of documents previously before the Tribunal consisting of:
(i)Applicant's statutory declaration dated 12.03.2019;
(ii)Applicant's letter to the Tribunal titled 'Apology to my behaviour' dated 11.03.2019;
(iii)Letter of support from Alosio Waininau (Hillsong Pastor) dated 08.03.2019;
(iv)Letter of support from Christopher Fernando (son) dated 28.02.2019;
(v)Letter of support from Mavis Fernando Ratu (wife) dated 28.02.2019;
(vi)Confirmation of premised lease dated 19.02.2019;
(vii)Letter from Esava Tawalo, Lal Patel Bale Lawyers dated 19.02.2019;
(viii)City Finance Activity Statements dated 30.01.2019;
(ix)Repayment arrangement (risk & security management) dated 29.10.2018;
(x)Release of bond to Maggie Ratu dated 13.11.2017;
(xi)Final order apprehended domestic violence order – Maikeli Ratu dated 06.11.2017;
(xii)Provisional order apprehended domestic violence order – Maikeli Ratu dated 25.05.2017;
(xiii)Applicant's supplementary statutory declaration attaching certificates of death dated 08.04.2019.
The respondent’s evidence consisted of:
(a)Statement of Facts, Issues and Contentions dated 7 February 2020;
(b)Bundle of Extracted documents from Applicant’s detention records – undated;
(c)Statement of Facts Issues and Contentions dated 27 March 2019;
(d)Further submission by respondent dated 29 April 2020.
Other evidence consisted of:
(a)AAT decision dated 29.04.2019;
(b)Certificate of water baptism dated 31.03.2019;
(c)Email from the applicant enclosing supplementary statutory declaration dated 09.04.2019;
(d)G documents filed on 22.02.2019;
(e)Documents produced by Downing Centre dated 26.02.2019;
(f)Documents produced by Roads and Maritime Services dated 26.02.2019;
The respondent’s solicitor tendered, as evidence in the present proceedings, the material relating to the previous Tribunal hearings including the transcript for the first Tribunal hearing held on 17 April 2019.
The findings made by the Tribunal on the same material in the previous hearing are not binding on me. I am also mindful of the recommendation made by Griffith J, that the Tribunal be constituted by a different member for the hearing ‘having regard to the strong adverse findings of fact made by the AAT’.[10] I am bound to reach my own conclusions on matters of fact.
[10] Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710, [114].
BACKGROUND
The applicant is a citizen of Fiji. He has been living permanently in Australia since August 2011. The applicant first came to Australia in 2010 with his late wife for cancer treatment, which sadly, was not successful. She died shortly afterwards, leaving three children under the age of five.[11] His deceased’s wife’s family insisted on looking after the children, so that he could return to Australia and earn an income.[12] He told the Tribunal that he had no choice but to leave the children with his in-laws in Fiji and come back to Australia without his children. He was depressed and in mourning. He had no financial resources.
[11] Transcript, 23 March 2020, 58.
[12] Transcript, 23 March 2020, 63.
In August 2011, he came back to Australia to look for work. At some point (the record is not clear) the three children moved to his sister’s care in Nadi, where they remain. He said that it was after he started sending money home to his sister for their care.
Upon his return to Australia, the applicant met a woman of aboriginal heritage. They were married in 2012.[13] I shall refer to her as MFR. She has five children from a previous relationship, ranging in age from ten to twenty-five years.
[13] Transcript, 23 March 2020, 29.
In 2012, the applicant started working for Westfield Construction as a steel fixer but suffered a workplace injury to his hand and was off work for two years. He returned to work in 2014 and worked for Qantas Catering. He had a second job as a security guard. He was employed in these jobs from the time he resumed work after his injury until he was detained in November 2017.[14] He had taken out personal loans with the ANZ and with City Finance, and when he was detained he was unable to service the loans and fell into arrears.[15] He told the previous Tribunal that he had taken out the loans for general purposes relating to the maintenance of his two families, and to purchase a car for his step-son, who was then 23.[16]
[14] Transcript, 17 April 2019, 19.
[15] Transcript, 17 April 2019, 20.
[16] Transcript, 17 April 2019, 21.
In December 2015, the applicant’s father died, and his mother died a few months later. He was severely affected by the cumulative effect of these losses.[17] He started seeing a psychologist for depression. He was drinking heavily and there was some degree of violence in his marriage.[18] There were children in the house.
[17] Psychological report, Forensic Psychologist, Dr Amina Ahmed: G9, 55.
[18] General practitioner notes, Dr Uddin, Berala Medical Clinic, 16 August 2017: Bundle, 329.
In December 2016, the applicant moved into a flat in Berala, NSW, and signed the lease in his name only.[19] It was during this period that the offences occurred which resulted in the visa cancellation.
[19] See letter dated 19.02.2019: Bundle, item 6.
FINDING ON CHARACTER TEST
The applicant does not dispute that he is the person named in the National Police Certificate dated 5 June 2018, and that he does not pass the character test. He has a 'substantial criminal record' as a result of convictions by the Local Court of New South Wales (NSW) in Burwood on 6 November 2017 for the offences of reckless grievous bodily harm (DV), contravene prohibition/restriction in AVO (Domestic), and reckless wounding (DV), for which he was sentenced to 18 months imprisonment by the District Court of New South Wales at the Downing Centre on appeal (see paragraphs 501(6)(a) and 501(7)(c)).
I therefore find that the applicant does not satisfy the character test.
The sole issue before the Tribunal is whether there is, within paragraph 501CA(4)(ii) of the Act, ‘another reason’ why the original decision should be revoked.
DIRECTION NO. 79
A determination under subsection 501CA(4) must be carried out in accordance with any written directions given under subsection 499(1) of the Act: subsection 499(2A).
The Minister has given such written directions. Direction No. 79 commenced on 28 February 2019. See: Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79).
The Tribunal is bound to comply with the terms of Direction No. 79.
Part C of Direction No. 79 governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) sets out the ‘primary considerations’ to be taken into account as follows:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 sets out the ‘other considerations’ to be taken into account where relevant, and states:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1 (PC1): PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 13.1(1) of Direction No. 79 provides that when considering the protection of the Australian community, decision-makers must 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 ...;
Under paragraph 13.1(2) I should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date;
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
The respondent relies on four classes of conduct committed by the applicant:
(a)Offences not disclosed to immigration on arrival in Australia. The following offences were not disclosed on his incoming passenger cards on the three occasions he entered Australia:[20]
[20] Respondent’s Statement of Facts, Issues and Contentions dated 7 February 2020, 53.
(i)An offence of assault occasioning actual bodily harm committed in Fiji in 1995, for which he was sentenced to pay a $100 fine and bound over to keep the peace;[21]
[21] Bundle, 119; G4, 41.
(ii)An offence of destroy or damage property committed on 5 February 2014 in Australia for which he received a $750 fine;[22]
[22] Bundle, 169-171, 321; G21, 91-93.
(b)A number of motor traffic violations (12 in all) committed between May 2016 and 28 March 2017;[23]
(i)Three disobey traffic signals;
(ii)Three exceed speed (all less than 20 Kms above limit);
(iii)Failing to give way;
(iv)Four fail to display P plates;
(v)Driving whilst suspended;
(c)Three domestic violence (DV) offences committed between May and November 2017.[24]
(d)Incidents during his detention in immigration detention.
[23] Bundle, 458-480.
[24] Bundle, 317.
The domestic violence offences attract the principles outlined in paragraph 13.1.1(b) that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
As noted above, in December 2016, the applicant took a lease on the Berala flat in his own name. In May 2017, some five months into his lease, the applicant was the subject of a complaint by a person (referred to hereafter as MK), who said that the applicant had assaulted her. She said it had happened five days previously. She told the police that she was living with the applicant in a domestic relationship when the assault occurred.
The applicant was arrested and interviewed at Auburn Police Station. The police considered that her claim was credible and that she was in need of protection from the applicant.[25]
[25] Bundle, item 12, 27.
The police therefore issued a Provisional Apprehended Domestic Violence Order (PADVO) against the applicant. He was advised of the terms of the Order and released on bail, but like many individuals in such circumstances, took no steps to challenge it. The Provisional AVO included the following prohibition on contact:
Orders about contact
2. You must not approach MK or contact her in any way, unless the contact is through a lawyer.
For example. You must not approach or contact MK in person or through electronic communication…
If MK contacts you and you reply, no matter how many times she contacts you or the reason for doing it, you will be breaching this order.
The charge of reckless grievous bodily harm was set down for hearing but, before it was heard, the applicant was arrested in connection with a second offence involving MK, which resulted in him being convicted, on 6 November 2017, of three offences before the Burwood Local Court.
The Tribunal has before it a document headed ‘Full Facts’ prepared by the police for use in the Local Court proceedings. The document relating to the May offence is a restatement of the allegations made by MK to the police. It includes a description of her injuries, including an injury to her forearm and the breaking of her little toe. She also received several bruises in the attack.[26]
[26] Bundle, 154; G18, 76.
The police facts relating to the November incident were also before the Tribunal and I paraphrase as follows: The applicant and MK had been living together at the unit in question for two years. There is a standard enforceable interim order (AVO) between the two with standard conditions. The victim is said to have prepared food for the accused and then went to the hospital to visit her grandmother and then had lunch. She returned to the unit at around 11 pm and the accused did not answer the door. The victim then managed to gain entry to the flat and witnessed the applicant drinking with a male friend. The accused is then said to have assaulted her by punching her forehead and then stomped on her using his feet. She lost consciousness and when she regained consciousness she ran for assistance. When the police arrived, they tried to talk to her, but she lost consciousness. The document notes that the ‘Police hold grave concerns for the safety and welfare of the Victim. An order is already in place which has not deterred the Accused’. [27]
[27] Bundle, 158; G18, 78.
Along with the reckless grievous bodily harm in May, the applicant was charged with two further offences: breaching the PADVO, and reckless wounding. He was not legally represented. He did not take issue with anything put by the police to the court. He gave no indication that he was aware that he could do so.
The magistrate imposed an aggregate sentence of one year and 11 months imprisonment for the three offences, with a non-parole period of 18 months. The individual sentences were as follows:
(a)24 May 2017: Reckless grievous bodily harm (dv): 10 months imprisonment
(b)6 November 2017: Contravene Interim AVO: 18 months imprisonment
(c)6 November 2017: Reckless Wounding (dv): 13 months imprisonment [28]
[28] Bundle, 317.
On 28 February 2018, the District Court varied the Local Court sentence to an aggregate sentence of 18 months imprisonment with a non-parole period of seven months. On this occasion, the applicant was represented by a solicitor. MK gave evidence for the applicant.
Not surprisingly, the learned District Court judge said:
In this matter I have heard evidence from the appellant and from his partner who was the victim of two very serious assaults some six months apart, in May and November 2017. They were his first offences.
He is a native of Fiji who has been in Australia for several years. He was brought here with his late wife, a relative of the victim, who supported them both when they arrived in Australia. Perhaps inexplicably to some other people and most right thinking members of the community his partner, the victim, has expressed a willingness to continue to live with him because she says she loves him and recognises that he has made mistakes and that he is a changed man as a result of this experience of being in custody for almost four months. Perhaps also surprisingly she had no inkling of the significant mental health difficulties which had been impacting upon his behaviour for some time and for which he had been and has been receiving treatment.
The applicant’s evidence
The applicant gave evidence both before me and in the previous Tribunal hearing in broadly consistent terms.
He told the first Tribunal that MK was a relative of his, that he had known her back from the home village, that he had known her for a long time, but the first time he met her in Australia was in 2016.[29] She approached him at Strathfield station and asked for a place to stay. He agreed and she came to Sydney with her boyfriend. He said she was often at the premises with her boyfriend when he was not there, and he could not get rid of her.
[29] Transcript, 17 April 2019, 22.
He denied that MK had ‘supported’ them when they first came to Australia.
He denied that he and MK were involved in any kind of domestic relationship or lived together. He said that his late wife, MK and he, all came from the same area in Fiji, but that was all. She was a guest for a while but soon became an unwelcome guest and would not leave. She brought people to the applicant’s flat uninvited, and often when he was not there.
The applicant says that at all times he was married, and is still married, to his wife; and that although they were living apart when the incidents with MK occurred, they were planning to get back together. He and his wife spent time together in the flat.
He said that the separation from his wife MFR was not permanent, that they were having time apart so that he could sort himself out.
When he was asked during the first Tribunal hearing whether he was living by himself in the unit, he stated ‘Ma'am, I was not living by myself. My missus used to come there with me.’ He said that they were ‘living apart together’ and hoped to live together in the future. His wife supports this contention. In a letter to the Tribunal dated 28 February 2019 she wrote: ‘[W]e both agreed that he moved out of house so that he could rehabilitate himself.’[30] He says they were functioning as a married couple, albeit living in separate residences, until he was arrested. The realtor confirmed that the unit was leased to the applicant from 15 December 2016 until 17 November 2018.[31] Only his name appears on the lease.
[30] Letter dated 28 February 2019: Bundle, 10-11; G16, 73.
[31] G6, 12.
The lease commenced on 15 December 2016. The assertion by the police that as of November 2017 the applicant and MK had been living in the unit for two years, is therefore incorrect. In fairness to the police, it is indicated that ‘Information has been limited due to the victim drifting in and out of consciousness while speaking to police, along with the accused showing serious signs of intoxication’.
The applicant was at a loss to explain why MK testified as his partner to the District Court, saying, with some credibility, that he was confused by the process and had not seen the police statement of facts. He was however represented by a lawyer on this occasion.
At the previous Tribunal hearing, the applicant was cross-examined about his relationship with MK.
Okay. So just to confirm: [MK] said you were in a relationship?---Yes.
The police have said that you were in a relationship?---Yes.
His Honour of the District Court of New South Wales has said you were in a relationship?---Yes, they – it's – they all based on this – on this fact sheet to what see not what I see 'cause I'm the – I'm the one blame and I'm not the victim she's the victim and this is all a story, not mine.
So when [MK] offered to give evidence in support of you in your proceedings; why did you let her do that? Why did you let her say that she was your partner?---I – I – for me that say I was just going to court and tell them I'm sorry. I – forgive me.
Okay?---And to be honest with you, ma'am, I didn't have any fact sheet like this to read from when I went to prison or I didn't read to know. When I come to – come up with this statement one – with this fact sheet while I was in detention centre, that's when I come to know and I read them, that's why I write back to the Minister that I'm confused. Most of the things written in it is not true.
But don't you think when [MK] stood up to give evidence at the court for your matter, that was the perfect opportunity to say, 'This woman is not my partner'?---For me that day, ma'am, I – I was really confused. I just said to Your Honour, 'I'm sorry' for all this thing happened.
As to the police facts put to the Magistrate, he was asked:
So are the police not reporting that correctly?
Ma'am. I'm really sorry. Forgive me. This – this statement is a story to the police. If you go back to my – the lease you can see that's not even two years I was living there and this is a story to them, it's not my story.
Although the applicant does not accept the facts underlying the interim AVO, he has never formally challenged them. There is, for example, no record that the applicant denied, either to the police when he was first interviewed in May, or during the criminal proceedings that followed in November, that he was in a domestic relationship with the complainant.
In fairness, he said that he had not seen the police facts document until he was in immigration detention. As an unrepresented litigant before the Magistrate in November, he may not have realised that he could challenge the facts in the sentencing process, although that may have resulted in an even heavier sentence. In the present proceedings, he expressed a fear that to challenge the police facts would not go well for him:
SENIOR MEMBER: So did you hit her?
MR RATU: Said if I argue – if I argue with it it’s going to be – you’re going to say I’m telling lies.
SENIOR MEMBER: I’m not, Mr Ratu. I’m going to make my own – this is – - -
MR RATU: This is what I’m scared of, because if I argue – if I argue my case, if I say, “No”, (indistinct), that’s why I – earlier I said to you, sir, that I do it, I’m wrong, because I can’t challenge because her story – the police have listened to her story and they all believe her story but from my side I – they haven’t received anything from me, they all believe her story.[32]
[32] Transcript, 23 March 2020, 92.
Given the importance of the applicant’s wife in this story, I have copied substantially from her letter of 28 February 2019.[33] MFR stated:
Maikeli Ratu is easy to manage and associate with and he always gives that extra effort to make ends meet.
Our marriage was on the verge of breaking down when my husband was convicted. It was the biggest mistake we took was that we both agreed that he moved out of house so that he could rehabilitate himself.
We arrived at his place one morning after he spent a weekend with us at home when I noticed that there were people in the house, drunk. It was this lady who put him to jail and his boyfriend. I was told by Ratu that he had no idea of them entering his house while he was away. The landlord approached us that morning, and told Ratu that there was a party at the house. He (landlord) paid a visit to Ratu’s apartment after midnight to speak to him about the noise disturbing other tenants, then he noticed that he didn’t know anyone in the house. He was told by someone in the house that Ratu was not home…
I couldn’t understand how the 2 years relationship was stated in the police report and how MK lied about the bashing. Reason being, I was there on the night she fell and I wasn’t given a chance to testify for my husband against all lies that was told about the incident.
[33] Bundle, 10-11.
With regard to the November offence, the applicant denied that he hit MK at all. His evidence regarding the November offence is supported by his wife, who claimed to be present. The applicant told the Tribunal that he was with his wife when MK gained access to the flat. He was sitting with his wife. He was drinking and she was not. When police arrested him and took him to the station, he was too drunk to be interviewed.
The applicant has no recollection of what actually took place during the November offence, due to his state of heavy intoxication. MFR’s evidence is therefore important. Her letter suggests that MK fell over when she left the flat and that her husband did not hurt her. But she was not called to give evidence. Nor did she give evidence before the Tribunal in the previous hearing, because she was attending a funeral in a remote location.
With regard to the May offence, the applicant says that MK attacked him with a wooden chair. He denies that he hit her with the broken leg of the chair, although he did admit to pushing her out the door. He says that he then went to sleep. He had just completed a night shift.
CONSIDERATION
In the present proceedings, the Tribunal is obliged to assess the nature and seriousness of the applicant’s conduct as part of the process of deciding whether there is another reason why the applicant’s visa should be reinstated. The applicant was sentenced on the basis that these offences were committed within the context of a domestic relationship; a fact strongly denied by the applicant, who said that there was no domestic relationship between him and the victim.
It is not necessary for the Tribunal to determine whether, at the material time, the applicant was in an intimate or domestic relationship with MK. The status of that relationship has no bearing on the validity of the convictions; it not being an element of proof for any of those offences that such a relationship existed. It is not a defence to an action for breaching a provisional AVO by assaulting the person in need of protection that it should not have been issued in the first place. Nor is the fact of such a relationship an element of the offences of reckless grievous bodily harm or reckless wounding.
It is of course possible, given the diversity of human relationships, that the applicant and MK had quite conflicting ideas about the nature of their relationship. It is also possible that he was in the grey zone between one relationship and another. It would require a very brave Tribunal member to venture into this field, and quite unnecessary to do so.
There is no question that the interim AVO was validly in force when the November offending occurred. Furthermore, the applicant conceded, in relation to the May offence, that he should not have pushed MK. In the evidence he gave to the Tribunal, he denied that he beat her or caused her injuries, but he admitted the assault. He said he had just returned home after working a night shift. He was tired and went to sleep immediately afterwards. He was arrested five days later, but the matter was not dealt with by a court until it was brought forward by the events of 6 November 2017.
In relation to the November offence, the applicant was undoubtedly guilty of breaching the interim AVO, either by breaching the proximity conditions or by assaulting MK, independently of any disputation of the grounds upon which it was issued.
The delegate discounted the letters of support provided by the applicant’s wife, MFR, and her children as lacking credibility. The Tribunal in its previous decision in this matter dated 29 April 2019, did not refer to MFR’s letter at all.
The applicant also provided evidence from a law firm in Suva relating to an incident where MK was alleged to have made false allegations against a man who was charged and acquitted of assaulting her.[34]
[34] See letter from Esava Tawalo, Lal Patel Bale Lawyers dated 19.02.2019: Bundle: item 7, 13.
There is however, an aspect of his evidence to the Tribunal that raises an important question.
In relation to the first incident in May 2017, the applicant told the Tribunal that MK entered the house very early in the morning after he had completed a night shift, and that she attacked him with a wooden chair. He responded by pushing her out of the house. He says that he should not have pushed her, but that his response was essentially defensive. In effect, he admits the assault.
In relation to the second occasion in November 2017, he does not admit to touching MK at all. His wife MFR stated in a letter that she was present (the applicant gave consistent evidence to the Tribunal that his wife was present) and witnessed the entire interaction. She says that MK fell over. According to the police report, MK could not give a clear statement because she was drifting in and out of consciousness; and the applicant was too drunk to be interviewed. The criminal investigation team refused to attend, for unspecified reasons.
This case presents as a classic example of where the Tribunal is offered a different set of facts to that offered to the magistrate, and invited to go behind a criminal conviction which forms, in part, the basis for the mandatory cancellation. As foreshadowed above, there are significant limitations on the powers of the Tribunal to do so.
I observe that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.[35]
[35] Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c).
In assessing the nature and seriousness of the offending, or the likelihood of reoffending, the Tribunal is entitled to have regard to the entirety of the applicant’s conduct, including the nature and seriousness of the conduct which led to the convictions, and make its own assessment of the significance of such conduct. There is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based.[36]
[36] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, [69], citing with approval Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J, [43], [45].
There is a distinction between cases where a conviction and sentence follows a contested criminal trial, and cases where there has been a plea of guilty. In the latter, there is a further distinction between cases where the penalty imposed is based on an agreed statement of facts; and cases where the so-called sentencing ‘facts’ amount to untested police allegations. A finding of guilt following a criminal trial will place a heavy onus on the applicant who seeks to challenge the facts on which the conviction is based. The onus will, as a matter of logic, be more easily satisfied where there was a plea of guilty than where there was a contested factual hearing.[37] This practical consideration is amplified where the applicant is unrepresented at the criminal trial.
[37] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J, [43].
However, there are some important qualifications on the Tribunal’s broad power of review.
The Tribunal’s jurisdiction under subsection 501CA(4) of the Act is founded upon the non-citizen having been convicted of an offence and sentenced to imprisonment for 12 months or more. In relation to this ‘jurisdictional offence’, neither the conviction nor sentence can be challenged or impeached in order to show that the applicant is not a person who does not pass the character test; or that there is ‘another reason’ why the original decision can be revoked.[38] Impugning the conviction would undercut the jurisdiction of the Tribunal. It is not permissible for the Tribunal to impugn the sentence for the offence upon which the jurisdiction of the Tribunal is founded.[39] Moreover, the Tribunal is not entitled to reach or express a view that the person was wrongly convicted, and this probably extends to all offences of which he or she stands convicted.[40] The Tribunal must tread cautiously.[41]
[38] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, [68].
[39] Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, per Sheppard J, 468; per Fox J, 445; Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, Branson, Lindgren and Emmett JJ, 244, [40]-[42]; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J, [45]; cited with approval in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, [69]; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, per Bromberg J, [78]-[79]; Minister for Home Affairs v Sharma [2019] FCA 597, per Anastassiou J; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
[40] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J, [44].
[41] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, per Sheppard J, 468-469.
In the present case, the applicant was sentenced to an aggregate term of imprisonment, but the Magistrate imposed a sentence for each offence. The offence committed in May attracted a sentence of less than 12 months, and this sentence was not altered by the District Court. The applicant may legitimately challenge the sentencing facts associated with this offence.
The jurisdiction of the Tribunal is founded on the offences committed on 6 November 2017. Therefore, as a matter of legal principle, it is not open to the Tribunal to accept the applicant’s denials that he struck MK when she entered his flat at 11pm, nor is it permissible for the Tribunal to impugn the conviction or go behind these sentencing facts.
That might seem to be a somewhat peremptory basis to upon which to dispose of such an important matter, especially where there is some evidence from his wife which supports his innocence.
It is, frankly, hard to accept that he and his wife simply fled the premises because of the AVO, and that MK simply ‘fell’, as suggested by his wife, without any pushing, shoving or physical interaction from the applicant. The story lacks credibility.
I note the risks specifically identified at paragraph 13.1.2(1) of Direction No. 79, namely,
(a)the nature of 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 reoffending.
As to (1)(a), there is no doubt that further acts of violence directed at women are not to be tolerated. It is the firm policy of the law, both state and federal, to outlaw domestic violence and treat is as a crime and unacceptable.
As to (1)(b), I am required to consider the likelihood of the applicant in engaging in further criminal acts or other serious misconduct.
The circumstances under which the offending occurred in November 2017 are relevant to an assessment of the likelihood of recurrence.
I note that the PADVO had strict conditions against contact between the parties and the parties should not have been living together. If MK was in fact living with the applicant, she should not have been. Any contact, let alone cohabitation, would have contravened the terms of the interim AVO. It was not legally permitted for the applicant to be in MK’s presence, although no doubt there are many lamentable cases where, by mutual consent, the parties affected by an AVO agree to ignore it without formally applying to have it modified or withdrawn.
If MK’s evidence about them living together is correct, then the applicant was in breach of the PADVO whenever MK was in the flat. Under NSW law, the person for whom the AVO was granted cannot be guilty as an accessory, even if that person creates a situation in which the subject of the order is in breach.[42] Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), subsection 14(7), a person for whose protection an AVO is in force is not guilty of aiding, abetting, counselling or procuring the offence of knowingly contravening an AVO.
[42] On general common law principles, MK herself might have been charged as an accessory to the applicant’s breach of the AVO: see Keane v Police (1997) 69 SASR 481, 484, where the person for whose protection to AVO was put in place was convicted of being an accessory; see also Family Violence – A National Legal Response (Australian Law reform Commission Report 114, Chapter 12, Aid And Abet Provisions.
It is the case that, according to the police facts, MK gained access to the unit despite the door being locked and the fact that the applicant did not let her in. She was the person the interim AVO was intended to protect, and in gaining access to his living abode she placed herself in danger. She cannot be charged as an accessory to his breach of the AVO, but her behaviour is relevant to determining the likelihood of the applicant engaging in further acts of a similar kind. These are unusual circumstances which must be taken into account in deciding whether there is a likelihood of repetition. I assess that likelihood as low.
Of course, the PADVO also contained specific clauses dealing with assaultive behaviour, and any such conduct aimed at MK was not only criminal in its own right, but a serious breach of the PADVO.
I note the sentencing judge’s comments that the prospects of rehabilitation were good, ‘assuming that he is able, on his ultimate release, to return to full-time employment and stay off the drink’. The learned judge also referred to “special circumstances” but did not indicate what they were and the materials that were before the judge, and to which his Honour refers, were not put before the Tribunal.
As noted above, one of the matters that arose during the hearing concerned the extent of the applicant’s participation in any programs relating to anger management or alcohol abuse during his time at Villawood Immigration Detention Centre. The applicant did not file any material additional to that which had been placed before the first Tribunal, and because this matter did not seem to be covered in the materials before the Tribunal, I asked for any records from Villawood addressing these issues to be produced, and they were duly produced.[43] It appears from those records that the applicant did not attend any anger management courses.
[43] Respondent’s Submissions, dated 29 April 2020.
In terms of the applicant’s remorse and contrition, I lost count of the number of times that he apologised for his conduct and said that he should have walked away. Given the circumstances as outlined above, I am not inclined to treat his evidence overall as showing a lack of remorse or insight into his offending.
I also note the other character matters put by the respondent against the applicant under this general heading relating to failure to declare certain matters on his arrival card, traffic offences, and incidents in the detention centre.
It should be said that the traffic offences are not trivial, especially the offence of driving while suspended. With respect to his failure to declare relatively minor matters on his incoming arrival card, I accept his evidence that he believed that he was only required to do so if he had been imprisoned. With regard to the various incidents in immigration detention, I note that these did not result in the laying of charges and can be readily explained in terms of the stresses that obviously occur in such forms of detention.
I have taken these factors into account in reaching my conclusion that this primary consideration weighs in favour of non-revocation of the mandatory cancellation.
Conclusion with respect to PC1
PC1 favours non-revocation of the mandatory cancellation decision. However, given the circumstances of the offending, and especially (according to the Police Facts) the victim’s conduct in entering the unit late at night when the door was closed against her, I cannot find that the PC1 weighs decisively against the applicant.
PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Under paragraph 13.2(1) of Direction No. 79, the Tribunal is required to consider whether revocation is in the best interests of minor children in Australia who may be affected by cancellation of the applicant’s visa.
Paragraph 13.2(2) provides that this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
Paragraph 13.2(4) provides that in considering the best interests of the child, certain factors (eight in number) must be considered, where relevant. They include: the nature and duration of the relationship between the child and the non-citizen; the extent to which the non-citizen is likely to play a positive parental role in the future; the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence of abuse or neglect by the non-citizen; and evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has three minor step-children: aged 10, 14 and 16. Two of his older stepchildren have children. Chris, the oldest son, is 25, and has two children. His oldest step-daughter, June, is 24 and has two children. The applicant has been in the lives of his minor step-children since 2012.
The Respondent contends that limited weight should be given to this consideration, for two reasons, first, the separation that has existed between the children and the applicant as a result of his incarceration in November 2017; and secondly, the fact that his conviction for crimes against a woman means that the Tribunal can have no confidence that he will be a good parenting role model in the future.
I note that during 2017 the applicant was on a mental health plan prepared by a general practitioner at the Berala Medical Clinic, Dr Uddin. The notes, dated 16 August 2017, state:
Last year he booked to travel to Fiji for his father’s birthday but he died and he attended his funeral instead. A month after coming back here his mum died. Started to feel emotional and angry since, arguing with wife and sometimes push and shove her. Always feeling stressed and anxious, low mood, not keen on medications.
Mood is depressed, down, Lost interest in things. Can’t concentrate… No suicidal ideation…
No auditory hallucinations.[44]
[44] Dr Uddin, Berala Medical Clinic, medical notes, 16 August 2017: Bundle, 329.
On 23 October 2017, forensic psychologist Amina Ahmed, stated that the applicant had attended a total of five sessions with her, that he had been referred by his GP for depression arising from the death of his parents. Dr Ahmed states:
[The applicant] attends regular sessions with myself and has begun to develop a good insight into the causes of his Depression, Grief and consequent anger reactions. He reports significant improvement in his relationship with his wife and has demonstrated good self-care and emotion management strategies.[45]
[45] Bundle, 329; G9, 55.
It is apparent from these reports that the applicant has some insight into his behaviour. But they also reveal that the applicant has a violent side – and that when he becomes emotional and angry, he would ‘push and shove’ his wife. The optimistic assessment by Dr Ahmed in October was dashed by the incidents of November 2017, when the applicant was taken to prison for assaulting MK.
The contrast between the behaviour which formed the basis for the November 2017 convictions and the positive psychological assessment a few weeks prior is stark.
It is widely recognised that there is a high degree of domestic violence within the Australian community and that it is not confined to particular ethnic or socio-economic demographics. The Federal and State governments have sought to address this other pandemic by legislation dealing with family violence. Direction No. 79 was itself the product of a view that offences against woman should be regarded as very serious, regardless of the sentence imposed. The normalisation of any degree of violence within a family is unacceptable and should be addressed as a matter of urgency.
The evidence suggests that the applicant has, during a period of personal turmoil and struggle (arising from the death of his first wife; the separation from the children of his first family; the loss of his parents in quick succession) taken solace in drinking and taken his frustrations out on his family. Any attempt to ‘explain it away’, and any repetition, will inevitably have a negative impact on the children by normalising violence directed at the family as a natural outlet for the sometimes intolerable burdens of living.
The applicant has been separated from his step-children since he was incarcerated in November 2017. There is no evidence that any of his minor children visited him in prison or Villawood.[46] He asserted that he had regular phone contact with his wife and that he did talk to the children on the phone.
[46] Transcript, 23 March 2020, 28.
The evidence is that the children are cared for by their mother, who has some health maladies, including diabetes.
Christopher and June both provided letters of support, although neither was available to the Tribunal for examination.
June provided a letter in the original proceedings. She said:
When I first met Dad I couldn’t believe that a man who has no personal relationship with me could be so kind and generous. We didn’t meet under the most ideal of circumstances but even so it was an answer to my prayers.
From the start of our relationship [the applicant] became a father figure to me and my other siblings and started supporting my mother, it seems like all was well and my mother was happy.[47]
[47] Bundle, 149; G14, 71.
Christopher provided two letters relevant to the assessment of this issue.
I refer to an undated letter provided in the original proceeding:
Dad…from the beginning of our relationship encouraged me to further study, be employed and be a productive member of this society. He always emphasized on the right path through being a Christian and a law abiding citizen. Due to his direct involvement in my life I believe that I avoided possible troublesome years in my late teen years and perhaps being in trouble with the law.[48]
[48] Bundle, 150; G15, 72.
I refer to the letter dated 28 February 2019 which is very supportive of his father. Chris states: ‘He is very compassionate and supportive to us, and especially to our mother whereas he alleviates our way of living’.
I am reluctant to discount the authenticity of these sentiments. However, their comments do not address the less appealing aspect of his behaviour. There is evidence of impulsivity on the part of the applicant, which may, especially when inebriated, result in violence. It is surprising that he is seen in such favourable terms given his behaviour, especially when drunk. There is however no evidence of abuse or neglect of any of the step-children, and I have no reason to doubt his generosity when he had the means. I note that he borrowed money to assist the oldest stepson to obtain a car, for example. Nor is there any evidence to suggest that any of the children has suffered direct physical or emotional trauma arising from the non-citizen’s conduct.
I should mention that the applicant also has a relationship with the children of his older stepchildren. Each has two children, but they are too young to have played much of a role in the applicant’s life.
I conclude that PC2 points strongly in favour of revocation of the mandatory cancellation.
PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of Direction No. 79 provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the Government’s views in this respect.
The leading decision on community expectations is FYBR v Minister for Home Affairs [2019] FCAFC 185, a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3). In that case, the majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
The High Court declined to grant special leave to appeal from the majority decision.[49]
[49] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
The majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker, to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation.
In assessing the weight to be assigned to PC3, I have due regard to the views of the executive government relating to the removal of non-citizen offenders from this country. The views of the government are encapsulated within Direction No. 79.
In assessing the weight to be assigned to this factor, the individual circumstances of the applicant are ‘necessarily front and centre’ in this decision-making process. However, this process must be conducted within the context of the principles contained within paragraph 6.3 which are stated to be of ‘critical importance’ in furthering the government’s objective of protecting the Australian community from harm as a result of criminal activity: paragraph 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: paragraph 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime, including of a violent nature, and particularly against women, should ‘generally’ expect to be denied the privilege of staying in Australia: paragraph 6.3(3). This principle has relevance in this case. Another principle is that in some circumstances the criminal offending and the harm that would be caused if it were 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 the visa: paragraph 6.3(4).
Another principle of particular relevance to this case is that contained within paragraph 6.3(7) of Direction No. 79 which recognises as a consideration the consequences of a visa cancellation for minor children and other immediate family members.
There is no doubt in my mind that in this case the consequences for the applicant’s minor step-children in Australia, as well as for the applicant’s wife, are profound.
I conclude that PC3 weighs against the applicant, but it cannot be said to weigh so heavily against the applicant as to be decisive. I have taken into account the importance of the protection of women from violence, but I have also considered the consequences, and especially the financial consequences, for family members flowing from a visa cancellation. These consequences are profound, as outlined in relation to Primary Consideration 2.
OTHER CONSIDERATIONS
a) International non-refoulement obligations
The applicant has not raised any non-refoulement issues and has voluntarily returned to Fiji.
b) Strength, nature and duration of ties
The applicant came to Australia in August 2011 in his mid-thirties, as a mature adult. He has lived in Sydney for approximately a quarter of his life, but since November 2017, he has been in prison or in detention due to the offending previously described.
In the period between August 2011 and November 2017, the applicant was employed for approximately four years. He was off work for two years due to a workplace injury.
The applicant has some community ties through his church, and there is a strong reference from the pastor of the Hillsong Church.[50]
[50] Bundle, item 3.
The applicant is married to an Australian aboriginal woman. The family situation has been outlined in detail above. At the time of offending he was living apart from his wife, although there is oral evidence from the applicant, and supporting material from his wife, to the effect that the separation was temporary and that the parties were hoping to resume cohabitation.
Nevertheless, I am struck by MFR’s lack of participation in the criminal or administrative proceedings involving the applicant. She did not appear as a witness on 6 November 2017, when the applicant pleaded guilty before the Local Court, nor four months later when he was sentenced by the District Court. She did not give evidence before the previous Tribunal, although I understand that she was attending a funeral in a remote location. She did not give evidence before the present Tribunal, although I recognise the difficult circumstances imposed by Covid restrictions and the hearing being conducted by telephone.
Nevertheless, I attach significance to her letter of 28 February 2019, in which she said:[51]
I know my husband well. I have been married to him for 8 years where I will always started the argument. He always stays quiet without a word back and always apologised at the end of the day. He is respectful and he knows his limits. Bashing women is not part of his life. We always come to an agreement and an understanding about our situation.
He called me when he was in jail asking me to go to his apartment to move all his stuffs back home including his wallet. Upon arrival to his apartment, the landlord informed me that she, MK, to took all his belongings including our cars. Several months later, I received his bank statement stating withdrew was done from his account while he was in jail.
I received information from my husband‘s family back in Fiji, that this lady MK… was spreading news about my husband that she will make sure that my husband will get deported back to Fiji. What right does she has that gives her the moves to make sure that my husband will be deported back to his home country…
My mother was removed from her parents when she was little. She never recovered from the distress. I am the effect of the stolen generation.
…I met my husband, who taught me how to respect and love my children. He influenced me further to my education. He’s very caring to my children and treats them like their own. He was a casual drinker until both his parents passed that’s when the griefing started…
I am confident and I vouch for my husband that he will not commit another crime or break the law where he will be able to make changes as well as a positive impact with our family.
[51] Bundle, 10-11; G16, 73.
The applicant has five step-children, the natural children of MFR. Three of the children are under 16, and two are in the early twenties. Chris Fernando, 25, has two children. June Fernando, 24, also has two children. The applicant regards these children as his step-grandchildren.[52] Both June and Chris have provided strong letters of support for the applicant. These relationships constitute substantial ties to the Australian community.
[52] Transcript, 23 March 2020, 39; Bundle, 140; G10, 62.
Although, as MFR states, she has been married to the applicant for eight years, the applicant has lived with his Australian family for just under five years and has not lived with them since his arrest in November 2017.[53]
[53] Transcript, 23 March 2020, 42.
Five years is a sufficiently long time to build very substantial ties to the Australian community, and the applicant has done so. This weighs in favour of revocation of the cancellation.
c) Impact on Australian business interests
There is no evidence of any impact in the relevant sense.
d) Impact on victims
The victim of the applicant’s offending, MK, gave evidence to the District Court judge. She said that she had forgiven the applicant and wished to resume a relationship with him. The judge said:
Perhaps inexplicably to some other people and most right thinking members of the community his partner, the victim, has expressed a willingness to continue to live with him because she says she loves him and recognises that he has made mistakes and that he is a changed man as a result of this experience of being in custody for almost four months. Perhaps also surprisingly she had no inkling of the significant mental health difficulties which had been impacting upon his behaviour for some time and for which he had been and has been receiving treatment.
It is not uncommon for a victim of domestic violence to ‘forgive’ a perpetrator and to resume cohabitation. Indeed, given the extent of reported domestic violence in the community, it is likely that this occurs on a regular basis. It may even be suggested that some relationships survive a period of tumultuous violence, and pass to sunlit uplands where each treats the other with respect; or the perpetrator moves on, but learns to control his or her impulses, and even bonds successfully elsewhere. Such is the complexity and chemistry of human behaviour.
Nevertheless, the Tribunal is required to view the conduct of the applicant objectively, and with emphasis of governmental policy goals which include the reduction of domestic violence and the protection of women and children from violence. Cases involving domestic violence inevitably involve some element of deterrence in the decision-making.
I have no doubt that on both occasions, in May and in November, the applicant caused significant physical harm to the victim. The physical harm was visible, the psychological harm less so.
e) Extent of impediments if removed
The applicant has been returned to his home country of Fiji at his request and therefore the Tribunal is better able to assess the impediments facing the applicant.
At the time of the hearing, the applicant was unemployed and living in the remote village of Vilakudi, on the island of Vumikodi, far removed from his children, who live with his sister in Nadi. He said that he could not live with his sister and his children in Nadi, for financial reasons.
The applicant’s late father came from Vilakudi. The village is remote and tiny, consisting of about 15 houses. The applicant says he is poverty stricken, and when he arrived, he had nothing to start with.[54] Fortunately, his uncle lives in the village.
[54] Transcript, 23 March 2020, 52.
He is likely to face difficulties finding employment in Fiji due to his criminal record and deportation from Australia, and because of escalating unemployment. The effect of the pandemic on Fiji’s tourism industry has been devastating. On the other hand, one cannot be sanguine about his prospects of employment in Australia either, given present circumstances arising from the pandemic.
I have little difficulty in finding that the applicant faces serious impediments in re-establishing his life in Fiji; and that his predicament is serious. Set against the background of the tragic, untimely death of his first wife, uncertainties about the future relationship with his Australian family, his underlying depression, and his track record of heavy drinking, there is some cause for concern. There is no evidence of the availability of accessible mental health facilities on the island.
If he can control his drinking, his present hardships may be offset by the possibility of playing a more significant role in the life of his three natural children. I am satisfied that there is a deep and caring bond for his natural children. When his son was ill with measles, the applicant went straight to his side, as one would expect from a caring father. He did not refer to any family tension with his sister. One cannot discount the possibility that over the past nine years his sister has developed strong maternal bonds over her nieces and nephew. Whether she would favour his reintroduction into their family life is uncertain. There is no evidence before the Tribunal as to the sister’s attitude to these matters.
The applicant also has a close relative, his uncle, in the village. I note that he also has three brothers living in Fiji. There does not appear to be any danger that he will be or become homeless.
Despite the occasional disruptions experienced by the Tribunal on the day of the hearing, there does appear to be some mobile phone coverage over the island of Vumikodi. It is however uncertain whether he has the means to afford to maintain contact with his wife and family in Australia, or, for that matter, his sister and children living in Nadi.
Overall, I find that this consideration is neutral. It weighs neither in favour, nor against the applicant.
WEIGHING THE FACTORS
The critical question to be finally decided is whether ‘there is another reason [i.e. other than the applicant passing the character test] why the original decision should be revoked’.
This case is awash with tragedy. The applicant’s first wife died in the prime of youthful adulthood, leaving three children under five. His second marriage faltered. He became entangled with a third woman, whom he rejects, but she wants him even though he has beaten her. He has a step-family in Australia, also with young children, to whom he has shown considerable devotion in providing moral and financial support. The two older step-children have expressed strong feelings of warmth for him. He has three minor children in Fiji approaching teenage years having not had the opportunity to know their father. And there is his sister, who has been looking after them, and to whom he owes an enormous debt of gratitude. And one cannot overlook the injuries and rejection suffered by MK.
There is another factor. The applicant is presently married to an aboriginal woman. The High Court has recently recognised, in an important majority decision, that a foreign national of Australian aboriginal descent is beyond the reach of the visa cancellation powers contained in section 501 of the Act.[55] The class of persons included within the scope of this protective shield is somewhat uncertain, given that persons may be recognised by local communities, tribal affiliations or customary law. There is nothing to suggest that the shield automatically covers the non-aboriginal (defined in purely ethnic terms) foreign born spouse of an aboriginal person. This point was not raised by either party in the present proceedings. I do not think that this case would provide a suitable vehicle to consider any extension of this doctrine, due to a lack of evidence on the issue, and I have not taken it into account.
[55] Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (11 February 2020).
My conclusions with respect to Direction No. 79 are as follows:
(a)Considerations favouring non-revocation of the mandatory cancellation:
(i)PC1 (Protection of the Australian community);
(ii)PC3 (Expectations of the Australian community);
(iii)OC4 (Impact on victims).
(b)Considerations favouring revocation of the mandatory cancellation:
(i)PC2 (Best interests of minor children in Australia);
(ii)OC2 (Strength, nature and duration of ties).
(c)Considerations that are neutral:
(i)OC1 (International non-refoulement obligations);
(ii)OC3 (Impact on Australian business interests);
(iii)OC5 (Extent of impediments if removed).
I find that two of the primary considerations PC1 and PC3 weigh firmly against the applicant. The residual doubts I have about MK’s role in the AVO breach are such that I cannot find that these considerations are decisive; but they are nevertheless weighty. I also find that OC4 (the impact on victims) weighs against the applicant.
As against this, the PC2 and OC2 weigh in favour of the applicant, while the remaining ‘other’ considerations are neutral.
I am satisfied that the considerations that I am required to take into account do not, on balance, weigh in favour of revoking the mandatory cancellation.
DECISION
In the circumstances of this case, I find that the preferable and correct decision is to affirm the mandatory cancellation and to decide that the applicant’s visa remains cancelled.
I certify that the preceding 167 (one hundred and sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
........[sgd]................................................................
Associate
Dated: 9 September 2020
Date of hearing: 23 March 2020 Date final submissions received: 29 April 2020 Applicant: Self-represented Solicitors for the Respondent: Bromley Hornsby, Minter Ellison
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