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

Ratugolea and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2839 (11 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3182
Re:Esava Ratugolea
APPLICANT

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

DECISION
Tribunal:
Senior Member M Griffin QC
Date:11 August 2020
Place:Sydney

The decision under review is affirmed.
....................................................................[sgd]....................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Five Year Resident Return (Class BB) (Subclass 155) visa – Applicant is a citizen of Fiji – failure to pass character test – substantial criminal record – whether there is another reason to revoke the mandatory visa cancellation –Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
11 August 2020
BACKGROUND

The Applicant applies for review of a decision made on 19 May 2020 not to revoke the mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa (the visa). The application is made pursuant to the Migration Act 1958 (Cth) (the Act).
The Applicant is 46 years of age and is a citizen of Fiji, having been born there in 1973. He arrived in Australia on 21 January 1987.
The Applicant married Z and had two children with her, born in 2000 and 2002.
The Applicant was involved in a motor vehicle accident in 2005 and suffered permanent injury to his right arm. Throughout his time in Australia the Applicant has worked, even securing work following the disabling injury in 2005. He separated from Z around 2009 or 2010 though they have not divorced, and not long after, re-partnered with his present partner, Ms P. There is one child, A, of that relationship, born in 2013. Ms P also has two children from a previous relationship, aged 14 and 16 years.
On 18 October 2018, the Applicant pleaded guilty and was convicted of common assault, aggravated break and enter and committing a serious indictable offence and contravene prohibition/restriction in AVO (two counts) for which he was sentenced to three years and three months imprisonment.
The visa was cancelled on 16 January 2019 under s 501(3A) of the Act (the cancellation decision). On 7 February 2019 the Applicant made representations to the Minister seeking that the cancellation decision be revoked. On 19 May 2020, a delegate of the Minister made the decision not to revoke cancellation decision under subsection 501CA(4) of the Act (the reviewable decision). On 26 May 2020, the Applicant applied for review of the reviewable decision.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501CA of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a) that the Applicant passes the character test as defined by section 501 of the Act; or
(b)that there is another reason why the original decision should be revoked (s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4.        The Minister may revoke the original decision if:
(a)       the person makes representations in accordance with the invitation;
and
(b)       the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: s 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 79 which commenced on 28 February 2019). The relevant paragraphs of Direction No. 79 are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction No. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)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 forfeit the privilege of staying in Australia;
(d)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;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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; and
(f)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.
Part C of Direction No. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction No. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
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.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction No. 79 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 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 two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Paragraph 13.1.1 of Direction No. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
(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 minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction No. 79 states that decision-makers must have regard, cumulatively, to the following:
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.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.
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);
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.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction No. 79 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.
The principles to be applied, as set out in paragraph 6.3 of Direction No. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties to Australia;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction No. 79 include (but are not limited to):
(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on victims
Paragraph 14.4 of Direction No. 79 provides:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 79 provides that the extent of impediments if removed requires consideration of 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: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
In accordance with s 501(6)(a) of the Act, the Applicant has a ‘substantial criminal record’ and accordingly, he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
The evidence of Ms P
The evidence of this witness was memorable for the demeanour of the witness, the fact that she failed to comply with giving evidence on the first day of hearing, the extravagance of what the Tribunal considered were the lies she told during the course of her evidence and the ultimate lack of credibility of that evidence.
Although the witness was meant to give evidence “at any time“, on the first day of the hearing and despite numerous attempts by the Applicant’s legal representative to contact her by phone and by text, she failed to make any contact until late in the day of the hearing. The witness explained that she was at the doctor. When questioned by the Tribunal on the following day, she clearly had the ability to phone or at least text, knowing that her availability as a witness was required and appreciating, so the Tribunal concluded from questioning her, the importance of her evidence in the Applicant’s case.
This witness was the victim of domestic violence on a number of occasions by the Applicant. She eventually gave evidence on the second day of the hearing but not without some difficulties. This included her leaving the conference call in a state of anger because she had been pressed by the Tribunal on whether she had spoken to the Applicant the previous day.
Ms P was particularly unimpressive as a witness in terms of her credit-worthiness. When asked by the Tribunal as to whether the Applicant had given her any money during the course of their relationship (approximately 10 years), she prevaricated, and during the course of questioning, she changed her version at least three times when it became apparent to her that the Tribunal had obviously been apprised of detailed information concerning such payments.

The Tribunal notes that the Applicant, as the result of a property settlement with his wife Z, had a sum of approximately $100,000. He had given the witness approximately $30,000. The witness originally denied this. The transcript discloses the course of the cross-examination which leads the Tribunal to conclude that she is not a witness of truth. In the Tribunal‘s opinion, she was attempting to hide the contributions, in turn to deflect any suggestion that she wished to maintain a relationship with the Applicant because of the funds which he had undoubtedly readily provided her in the past and might do so in the future, and establishing a financial basis for the witness wishing the Applicant to remain in Australia.
This was not the only aspect of her evidence leading to a finding of lack of credit-worthiness. Ms P was asked as to why she had changed her evidence concerning the length of time that she and the Applicant had been in a relationship. The change of evidence coincided precisely with the change of evidence the Applicant had made the day before. Ms P swore that she had not spoken to the Applicant overnight, although her evidence was that she and the Applicant communicated by phone every day. Particularly more curious is the fact that the Applicant’s phraseology concerning the length of time the parties were in a relationship coincided precisely with the same phraseology in Ms P’s statement. The length of time that the relationship endured, particularly its date of commencement, may be thought to be relevant in terms of when the Applicant and his wife ceased their relationship. This Tribunal is not of course concerned with the issues of morality or propriety but it may well have been thought by the Applicant and his witness that this would have been a relevant matter.
The statements of the Applicant and the witness of February 2020 were almost in exactly the same terms, including the same headings as to subject matter and with almost identical, legal phraseology. It was clear to the Tribunal before any evidence was given that these statements must have been prepared by the Applicant’s representative.
The Applicant agreed with that suggestion. Ms P did not, however, and swore that the statement was in her own words. However, after taking her to many of the passages in the statement, she simply changed her evidence, and said that the solicitor “had prepared it”. Her dishonesty, in the face of sworn evidence to the Tribunal, was breathtaking. These are not the only aspects of her evidence that cause the Tribunal concern.
Another aspect to her evidence, leading to a conclusion of lack of credit-worthiness, was the fact that she said that she lied to police officers on the occasion of 27 December 2011, when she originally alleged an assault by the Applicant, that assault being of quite a serious nature, including personal violence by pushing or at least some form of physical contact. When it appeared that the police were going to arrest the Applicant, she denied anything had occurred, that it was not the Applicant’s fault and said that she had fallen accidentally. She admitted in evidence, therefore, that she had lied when asked about this by the Tribunal.
On her own admission, therefore, the witness admitted in the past that she was prepared to lie in important circumstances to achieve what she wanted, that is to say, she wanted to stop the police officers from taking the Applicant away.
The Tribunal is in no doubt that this witness is prepared to say anything that suits her own purposes, although it is not always easy to detect the logic or the real reason for such lies.
Nonetheless, the Tribunal is not prepared to attach any credit-worthiness to her evidence except for one matter.
That matter concerns the preparedness of Ms P to provide contact between the Applicant’s daughter and the Applicant. This is evidence, however, that is independently confirmed by the almost daily contact the Applicant has had with his daughter and the Tribunal’s ability to see the witness provide some visual contact between the Applicant and his daughter just prior to her giving evidence by video.
In the Tribunal’s opinion, it simply does not matter whether the relationship between the Applicant and Ms P exists now or will continue to exist in the future. Both the Applicant and Ms P, by their own words and the tone of the answers when they were asked, have left the Tribunal in doubt as to whether there is any real likelihood of the relationship continuing or whether it actually exists at present.
The Applicant, should he remain in Australia, has the support of many family members living in Australia and he will be able to see his daughter. Ms P has said she will not travel with the Applicant to live in Fiji if the Applicant has to return to that country. The relationship between the father and child, which the Tribunal considers extremely important, together with the relationship with his other minor children, will be discussed below.
Protection of the Australian community (past conduct and future risk)
As a result of convictions on 18 October 2018 in the Griffith District Court, it is accepted that the Applicant does not pass the character test. It is necessary to describe the Applicant’s offending history which commenced in 1998 to understand fully the implications that history for considerations relevant to Direction No. 79.
The Applicant has a number of convictions which are usually described as traffic offences including drink-driving, speeding and driving without a licence. Not only do these convictions demonstrate that the Applicant was prepared to behave in a way which may have created a danger to the public but, more importantly, those convictions demonstrate in the Applicant’s total disregard for the rules and regulations of Australian society and a lack of concern about adhering to Australian laws.
Upon returning to Australia from overseas, the Applicant lied in his incoming passenger cards on a number of occasions as to whether he had previous convictions. Not only does this damage the integrity of the immigration system but, in a subjective way, the Applicant deliberately lied to authorities for his own purposes. The Tribunal does not accept the Applicant’s explanation for the manner in which he filled in those cards. This is another example of the Applicant’s refusal to abide by Australia’s laws and regulations similar, in effect, to the discussion concerning the traffic offences.
It is proper of course, as required by Direction No. 79, to look at the sentences imposed in the entirety of the Applicant’s criminal history and it is also necessary, in the Tribunal‘s opinion, to look further into the circumstances and the nature of the offences.
The Applicant has been convicted of violent offences against three females, all of whom were in a relationship with him. The first offence, in 1998, involved punching his then girlfriend, most probably while under the influence of alcohol.
Most probably under the influence of alcohol, the Applicant also perpetrated a violent offence against his wife in which the circumstances involved serious physical violence.
Presumably the relationship which ended in about 2010 was the result of a tumultuous relationship involving, as the Applicant accepts, abuse of alcohol. The disharmony continued with his wife in relation to the property settlement from which he gained a sum of approximately $100,000, and has continued to the extent that the children of that relationship have had little recent contact with their father. On the evidence, that seems to have resulted from the mother’s refusal to facilitate or even allow contact.
It is clear that the Applicant’s offences in the domestic setting have been against women, in the presence of his children and others on the last occasion. Interwoven with the offences against Ms P, as is common in these situations, were domestic violence orders made against the Applicant and breached by him as a result of offending. This is particularly so for the 2018 offences.
In the Tribunal’s view, the Applicant’s offending and the seriousness of that offending has increased over time, culminating in the 2018 offences.
Agreed facts were placed before the sentencing judge on 18 October 2018. It is relevant to set out some brief passages to gain a flavour of the Applicant’s last offending:
In September 2017, an apprehended violence order was issued by the Griffith Local Court which named [the Applicant] as the defendant and [Ms P] as the person in need of protection. The conditions of the apprehended violence order were mandatory orders, namely not to assault, harass or threatened a protected person or any person in a domestic relationship with the protected person and in addition there was a prohibition from approaching within 100 metres of an address at Graves Place, Griffith, together with another address.
The first two offences, being the common assault and breach of an apprehended violence order took place on Saturday 24 February 2018 at approximately 11.30pm. The victim attended the Victoria Hotel to watch some friends play in a band. She consumed one glass of wine before approaching the bar area. The offender approached her from her right hand side and headbutted her to the right side of her face. This incident was captured on CCTV footage. The footage was tendered at the sentence hearing and it was played and I have viewed it. The victim fell to the ground and was assisted by other patrons and staff. The offender left the hotel while staff assisted the victim. The victim left the Victoria Hotel a short time later and returned to her home at Graves Place. It was there that the offence of aggravated break and enter and commit a serious indictable offence and the second offence of breaching an apprehended violence order took place.
At about 4am, that is some four and a half to five hours after the incident at the Victoria Hotel, the victim was asleep in her bed. The offender entered through the rear closed sliding glass door and made his way to the victim’s bedroom. The victim’s daughter saw the offender in the kitchen and sent text messages to her mother commencing at 4.03am, indicating that the offender was there at the house and asking what to do and indicating that she was calling police. The victim did not receive those messages. The offender entered the bedroom of the victim, leant over her and began repeatedly punching her in the face. She woke up, said, “What the fuck?” The offender continued to punch her in the head an unknown number of times, screaming at her and calling her a slut. The victim sustained bruising and swelling to the left side of her face as a result of the assault. Her screaming woke the six children in the house who contacted police and fled the dwelling. The victim got out of the bedroom, went to the bathroom where she began to throw up with the offender following her. Police arrived a short time later and spoke with the children who were visibly upset and shaking. Police entered the house, announced their attendance and called upon the offender. He left from a bathroom area and was arrested for breach of an AVO. He was taken to Griffith Police Station and declined the opportunity to be interviewed.
There are some relevant aspects to the Applicant’s offending history which reasonably, the Tribunal considers, somewhat lessen his culpability.
As a result of the motor vehicle accident in 2005, the Applicant sustained significant injuries, leaving him permanently disabled which, in turn, caused financial stress and emotional difficulties within the relationship as well as ongoing chronic pain. This led him to, in effect self-medicate with alcohol to deal with the stress and pain.
The psychologist, Ms Lucas, who prepared a report for sentencing proceedings, considered that the Applicant has had difficulty with “a range of cognitive functions”. Those included low frustration tolerance, fatigue, inability to concentrate for even relatively short periods, difficulty making decisions, problem solving, slowed thinking, reduced capacity to multitask or resume a task which had been interrupted.
The Tribunal notes that, according to Ms Lucas at paragraph 59 of her report:
the results of cognitive testing also did not suggest that the offender suffers from profound difficulties with self-control or impulsivity to a degree where he is unable to control his responses. These factors, however, may change when he is under the influence of alcohol. Combined with cognitive deficits apparent, the offender may experience difficulties with impaired self-control and poor decision-making beyond what would normally be expected when intoxicated.
The sentencing judge concluded, on the balance of probabilities, that the report suggested the presence of an acquired brain injury. Those difficulties, the psychologist thought, would affect the Applicant’s functioning on a daily basis, made worse when alcohol also affected his behaviour.
The Tribunal is satisfied, independently, that these matters have been established and furthermore, that they operated at the time when the 2018 offences were committed. It is also possible that the low level of intellectual functioning has affected the Applicant throughout his life and particularly during the time since he began committing offences.
The Tribunal is, therefore, satisfied that in judging the seriousness of the Applicant’s offending, that these factors referred to above should be taken into account to diminish the culpability of his offending, thereby diminishing the overall subjective seriousness and severity of his offending. This will be taken into account overall in relation to Primary Consideration 1 and Primary Consideration 3.
The seriousness of offending and risk discussed
The Applicant submits that he does not pose an unacceptable risk to the Australian community and is unlikely to re-offend, given that he has now experienced incarceration and its flow-on effects in terms of shame, loss of liberty and being away from his family. He further submits that he has also, on a number of occasions, expressed remorse for his actions. The Tribunal also recognises that the Applicant has completed some courses whilst in detention although he has not undertaken any alcohol-related courses for dealing with his obvious addiction to alcohol which is really at the heart of his offending.
The Applicant has not been released into the community and there is no way of testing whether his resolve, which the Tribunal accepts is genuine, will assist him to refrain from his previous type of behaviour.
The Tribunal accepts that there are some protective factors at play which may assist him. It is clear from the statements made by his family that his mother and father, who live in separate households, and his sisters, and in fact a wide range of extended family, are prepared to assist him. The Tribunal is in no doubt that those offers are genuine and well-intentioned.
In fact, the history of the Applicant’s offending shows that various attempts and intervention by way of the types of sentences constructed for him were to no avail. He has not demonstrated any real rehabilitative behaviour and his behaviour in the community in the future is untested, having been incarcerated since October 2018.
It may be supposed that the prospect of leaving Australia would be a powerful factor weighing against his continued offending, together with his genuine desire to be able to live in Australia with his biological children, other minor children in his life, and his family members, most of whom live in Australia.
The Tribunal recognises that the Applicant’s affiliation with the Seventh-day Adventist Church may act as a protective factor should he be released into the community.
The Tribunal accepts that the Applicant has a genuine and well-intentioned desire to undertake counselling for his alcohol abuse upon release from immigration detention.
The Applicant breached Apprehended Domestic Violence Orders which were meant to be a powerful tool to protect members of the Australian community. The Applicant has demonstrated that, since 1998, he has assaulted three different women, all in a domestic situation. That is the sort of offending that the Tribunal considers the Applicant is likely to commit in the future. There is also no suggestion that he will be unlikely to commit traffic offences, although this is a more remote possibility.
The Tribunal is comfortably satisfied that the cumulative effect of the Applicant’s offending including as it does, but not limited to, the particularly serious offences against women in a domestic violence setting, is extremely serious.
Taking into account all of those matters advanced on behalf of the Applicant in relation to his risk of re-offending, the Tribunal is not satisfied that he will not re-offend and, therefore, that he is a risk to the Australian community of re-offending.
The Tribunal concludes the Applicant is very likely to be a risk of offending in the way he has in the past. Therefore, the Tribunal concludes, overall, that this consideration weighs very strongly against revoking the mandatory cancellation.
Best interests of minor children in Australia
The Tribunal accepts that the Applicant’s position in his family as the eldest male member adds weight to the submission that he holds a special place and has special responsibilities to his parents and other family members. This consideration carries weight when considering the interests of minor children, the extent of impediments to his removal and strength of ties to Australia.
In relation to some of the minor children, nieces and nephews of the Applicant, there was no evidence specifically given during the hearing. These minor children (all individually dealt with below) were identified to the Tribunal after evidence was completed on the second day of hearing. There was no evidence given in relation to these children except in the form of Exhibit 2, naming each minor child relevant to these proceedings. The interests of these minor children, together with all other minor children, will be taken into account in the Applicant’s favour by the Tribunal.
Specifically in relation to the minor children:
The Applicant has three children from his previous marriage, one of whom is a minor child, K, born in 2010. Although his wife, Z, has positively not promoted the relationship between the Applicant and his three children, nonetheless, the Tribunal accepts that not withstanding the fact that the children do not communicate with the Applicant at present, they should not be denied the opportunity to rekindle the relationship with their father and removal would impede the prospect of such a relationship. It is, therefore, a matter of weight in the Applicant’s favour that this minor child would benefit by having the Applicant remain in Australia.
Child A, a female, was born in 2013 and is the biological child of the Applicant and Ms P. There are also two relevant children from that household, a male, LC, born in 2005 and a female, KC, born in 2003. These two minor children are the stepchildren of the Applicant.
Until incarceration, the Applicant had spent time with those children in his partner’s household.
It is of considerable weight in the Applicant’s favour for the Applicant to remain in Australia in respect of his biological daughter, Child A, so that he may have a meaningful relationship and vice versa.
The evidence before the Tribunal was that Child A has had a close, continuing relationship with her father even whilst in custody and detention. For all the obvious reasons, it is highly desirable and therefore weighs strongly in the Applicant’s favour, that he remain in Australia.
This is also the position in relation to the stepchildren, although he has had less contact with them. Even should the relationship with Ms P fail, the Applicant having been part of the stepchildren’s lives (although they are now mid-teenagers) is nonetheless a factor that weighs in the Applicant’s favour for him to remain to benefit that relationship.

Although the Tribunal recognises that there are electronic and digital means of communication nowadays, it is a much less satisfactory means of contact/communication between children and their parents.
The Applicant has five sisters who, on the evidence, the Tribunal finds are in a close familial relationship with the Applicant and vice versa. Each of the sisters has minor children and those nieces and nephews are relevant to the Tribunal‘s consideration.
Two sisters gave evidence before the Tribunal. KT has two minor children, KT born 2005 and IK born 2014. RV has four minor children, PD born 2007, AK born 2008, EJN born 2012 and AN born 2015.
The Applicant’s family members are located in Griffith, Sydney, and in Victoria, and although there are physical distances amongst the members, the Tribunal accepts, particularly in this Fijian cultural, family background, the Applicant has been a father figure to all the nieces and nephews.
In KT’s case, the Applicant assisted her and the children during a difficult family break up with her ex-husband. The Tribunal accepts that he played an integral role during a difficult time in their lives.
In the case of RV, the Applicant also played an important role in her children’s lives as well as her own following the breakdown of her first relationship. The Applicant, the Tribunal accepts, seems to have played a greater role in relation to RV’s two older children.
In relation to all the sisters, it is apparent that should the Applicant be returned to Fiji, this will cause hardship and emotional distress to all of those families. The Applicant has contributed financially in substantial ways to both his sisters and his parents. That financial contribution is also considered by the Tribunal to weigh in the Applicant’s favour when considering his removal with respect to his relationship with both nieces and nephews.
In relation to the minor children of KT and RV, although the Applicant’s relationship with them has been slightly different, the Tribunal considers that the difference is negligible in considering the question of those minor children’s best interests. Those interests weigh in favour of the Applicant and revocation of cancellation.
Towards the conclusion of the hearing on 28 July, it was revealed that there were a number of other relevant minor children, the children of other sisters not made apparent on the face of the Applicant’s material. The Respondent was content to produce Exhibit 2 as a joint document, in which the Applicant set out the various relatives and nieces and nephews and dates of birth. There was no specific evidence given about these children: JM, born 2018; JN, born 2002; and WS, born 2013.
Whilst there was no specific evidence given about these children and their relationship with the Applicant, the Tribunal considers it correct and proper to infer that the Applicant has had a similar close, familial relationship with the other children similar to the relationships discussed above with his other nieces and nephews. For that reason, the Tribunal considers that, although there is a paucity of evidence, these additional children also weigh in the Applicant’s favour, in considering revocation of cancellation.
The question of weight to be given to the interests of minor children is not a mere question of mathematics and apportioning a percentage weight to each child. Nor is it a matter of sheer numerical consideration.
In this case, it is obvious to the Tribunal that the Applicant has a variety of different relationships with different children including biological children, stepchildren, nieces and nephews. The picture presented of the Applicant’s relationship with minor children in this case is a highly compelling and weighty consideration which weighs in the Applicant’s favour. It is a strong and powerful consideration in the overall consideration of these matters. The Tribunal does not however consider that this is a determinative issue alone.
Expectations of the Australian Community
This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not up to the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 79 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
The Applicant’s offending in the past should be regarded as particularly serious, such offending being in relation to women in a domestic situation, together with a variety of other offences including breaches of Court Orders and traffic offences. Overall, the Australian community would regard the offending as particularly serious even allowing some tolerance for the subjective factors which diminish the Applicant’s culpability and the length of time he has spent productively in Australia, together with his family ties, including his children and other minor children who reside here.
This consideration weighs heavily against revocation of the mandatory cancellation.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.
Strength, nature and duration of ties
In this matter, it is clear on the evidence that should the Applicant be returned to Fiji there will, in fact, be the break-up not only of his family unit with his present partner and child but also with his family and extended family members, all of whom have been the subject of submissions and evidence in these proceedings.
Such a break-up is a matter which weighs in the Applicant’s favour in this overall consideration in relation to his ties to Australia.
The Applicant has lived in Australia since his early teenage years from 1987. He is now 46 years of age. There are significant family ties including parents, siblings, nieces, nephews, and his present partner (whether or not that relationship endures). The Applicant also has four biological children who are Australian citizens and permanent residents and he has played the role of stepfather to Ms P’s two children from a previous relationship. It is really not to the point, in the Tribunal‘s view, that there has been little or no contact with some family members, children and stepchildren in the past. The Tribunal accepts the submission of the Applicant that removing the Applicant from Australia would deprive him of the opportunity to repair those relationships at a future time.
Furthermore, the Tribunal accepts that there are issues of cultural sensitivity which impact on the nature of the Applicant’s ties and the extent of impediments to his removal which is, of course, central to another consideration.
The Applicant, on the evidence, has worked throughout his adult life in Australia, commendably even finding work subsequent to his permanent disability from 2005. The Tribunal considers that this should also be taken into account as a contribution to Australian society. Furthermore, in the Tribunal’s view, the removal of the Applicant who has given substantial assistance to his parents and siblings is another consideration weighing in the Applicant’s favour.
This consideration therefore weighs strongly in the Applicant’s favour for revocation.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.
Extent of impediments if removed
The Tribunal considers that there are a number of matters to be considered within this consideration, all of which are in the Applicant’s favour.
In 2005, the Applicant was seriously injured as a passenger in a motor vehicle and suffered significant, permanent injury to his right arm. The Applicant demonstrated during the course of the hearing the difficulty he experienced and using his right arm.
During the course of a psychological assessment for sentencing proceedings in 2018, a psychologist, Ms Lucas, identified the Applicant as having low-level intellectual functioning as well as other symptoms that were consistent with having suffered an acquired brain injury. Some of these details have been discussed above.
The Tribunal considers that the Applicant will require ongoing medical treatment and pain management for his disability and injury. There is free primary and secondary health care available in Fiji, however, the Tribunal accepts that the nature of the healthcare available does not extend to the more sophisticated physical and mental health needs that the Applicant will require. Further, the Tribunal concludes that because there is a real possibility of a lack of suitable care for the Applicant for his brain injury and chronic pain in Fiji, removal to Fiji would constitute a significant impediment, particularly in circumstances where the Applicant would be living with continuous chronic pain.
Although there was evidence that the Applicant had abandoned treatment at the Canberra hospital for pain management, treatment and the possibility of further surgery, this does not detract from the significant impediment identified by the Tribunal.
Should the Applicant be removed from Australia, he will leave behind almost the entirety of his family, including children. They will all lose the support, the Tribunal accepts, that the Applicant has provided to those family members including children, siblings and parents, as well as his partner, should the relationship survive.
The Applicant has spent his later teenage years and his adult life in Australia and, as referenced above, has commendably worked largely throughout his adult life even after the 2005 injury. Disabled as he is, the Applicant is likely to find it difficult, if not impossible, to obtain employment in Fiij.
Although the Applicant has some family members residing in Fiji in a village setting, the Tribunal considers that there is the real possibility of the Applicant having substantial difficulties actually finding accommodation, at least in the short term. The Applicant does have, on his evidence, a fund of about AUS $70,000.
It is tolerably clear on the evidence, that Ms P will not relocate to Fiji should the Applicant return to that country. This is explicable on the basis that she has two children from another relationship who live in Australia although they are in mid- to late-teenage years. There may be some expected difficulty, the Tribunal accepts, in the Applicant maintaining physical contact with his two biological children, in that, he will likely have to pay for travel should he wish to see them.
Furthermore, an impediment to the Applicant’s removal is the fact that the Applicant, who hitherto has supported Ms P and his daughter, will be, in the Tribunal‘s view, less able to do so when living in Fiji because of the likelihood of the Applicant’s difficulty in obtaining work.
All of these matters, together with the other submissions made by the Applicant’s legal representatives, lead to a conclusion that this is a consideration which substantially weighs in the Applicant’s favour.
CONCLUSION
There are a number of matters for consideration in this case which highlight both weighty and competing factors within the various considerations. The Tribunal considers that there is great force in the Applicant’s submissions concerning inter alia the interests of numerous minor children, impediments to his removal to Fiji, and his ties to Australia.
For the Respondent, there are serious considerations for refusal of revocation relating to the seriousness of the Applicant’s offending and risk of re-offending, together with expectations of the Australia community.
Although the Applicant’s contentions in favour of revocation of the mandatory cancellation are powerful, the Tribunal, in this matter, concludes that these considerations are outweighed by the extreme seriousness of the Applicant’s past conduct and the real risk of future offending, particularly in relation to matters of violence to women. Furthermore, the expectations of the Australian community, in this case, also weigh strongly against the Applicant.
In the event, the Tribunal concludes, that the decision under review is affirmed.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of , Senior Member M Griffin QC,

.............................................[sgd]...........................
Associate
Dated: 11 August 2020

Date(s) of hearing: 27 and 28 August 2020

Date final submissions received: 28 August 2020

Counsel for the Applicant: Ms M Yu

Solicitors for the Applicant: Alan Rigas Solicitors

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 2839

11 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	27 and 28 August 2020
Date final submissions received:	28 August 2020
Counsel for the Applicant:	Ms M Yu
Solicitors for the Applicant:	Alan Rigas Solicitors
Solicitors for the Respondent:	Sparke Helmore Lawyers