Raumakita and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 3178
•4 June 2024
Raumakita and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 3178 (4 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1585
Re:Moses Raumakita
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:4 June 2024
Place:Sydney
The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member A Poljak
Catchwords
MIGRATION – mandatory cancellation of a Class BF Transitional (Permanent) visa under section 501(3A) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Secondary Materials
Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A Poljak
4 June 2024
The applicant is a citizen of Fiji. He first arrived in Australia as a young child on 12 October 1988. Since this time, the applicant has remained in Australia, including during his formative years, except for a brief period when he returned to Fiji to complete his schooling.
The applicant has an extensive criminal history spanning a period between 23 November 2004 and 28 July 2023. Over thirty of the applicant’s criminal offences relate to domestic violence, eight relate to driving while disqualified, three offences are of robbery in company, and the remainder include stealing or shoplifting and possession of prohibited drugs.
On 31 May 2007, as a result of the applicant's criminal offending, he was issued with a "formal counselling letter" from the Department of Immigration and Citizenship (as it then was) which advised the applicant that any other conduct on your behalf that comes within the scope of subsection 501(6) could result in the consideration of the cancellation of your visa or refusal of any future visa application under section 501 of the Act. Please note that the consequences of visa cancellation under section 501 of the Act may include your removal from Australia and, in certain cases, you may not be able to return to Australia. The bulk of the applicant’s criminal offending occurred after this time.
On 22 May 2023, the applicant's Class BF Transitional (Permanent) Visa (visa) was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation) on the basis that the applicant did not pass the character test.
On 23 May 2023, the applicant made representations to the delegate seeking revocation of the cancellation decision. On 8 March 2024, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's visa. This is the decision under review in these proceedings (decision under review).
Issues
The applicant does not pass the character test by virtue of his sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue is for determination is whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act.
Relevant Legislative Provisions
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a full-time custodial sentence of imprisonment.
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).
In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-maker’s exercise of discretion:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 guides decision-makers as to the making of the visa cancellation, refusal or revocation decision. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of Direction 99 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should generally be given greater weight than the other considerations: paragraph 7(2).
Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(5)):
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9 identifies other considerations which must be taken into account, to the extent that they are relevant. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:
When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Paragraph 8.1(2) of Direction 99 provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant's conduct
The applicant's offending conduct is viewed very seriously. Paragraph 8.1.1(1)(a)(ii) and (iii) of Direction 99, states that crimes of a violent nature against women and acts of family violence are viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed (and regardless of whether there is a conviction, in the case of family violence).
The applicant's criminal history demonstrates an alarming pattern of disruptive and violent behaviour. Over thirty of his convictions relate to acts of family violence against his ex-partner. This is despite the terms of apprehended violence orders (ADVOs) and other deterrent measures, including a Community Correction Order (CCO), Conditional Release Order (CRO) and Intensive Correction Order (ICO).
Most recently, the applicant was convicted of common assault (DV)- T2 and contravene prohibition/restriction in AVO (Domestic)(16 counts). The circumstances of the applicant’s offending are contained in the transcript of the contested hearing and sentencing remarks of Magistrate Prowse of the Bankstown Local Court on 23 January 2023. The circumstances being that the applicant and his ex-partner had a verbal altercation which turned physical, involving the applicant pinning his ex-partner against a mattress and holding his hand on her neck. The Court found the matter to be proven beyond reasonable doubt. Magistrate Prowse found the offending to be above the mid-range level of seriousness, noting the context of domestic violence, that it occurred at the victim’s home, that it was in the presence of their children and that the applicant was subject to conditional liberty. Separately, the applicant was convicted of making 13 phone calls and sending 3 handwritten letters to his ex-partner while incarcerated at Parklea Correctional Facility, despite an ADVO being in place against him for the protection of his ex-partner. Magistrate Prowse noted, The telephone calls where you lied, cheated and defrauded corrective services in relation to whom you were speaking when there was an AVO in place, saying that you weren’t to approach or contact her in any way unless it was through a lawyer, there’s no suggestion that you were making the calls from a legal interview room in the presence of a lawyer, so it goes to show that your connection with honesty is fleeting and only occurs if you can’t think of any other way out of it. The applicant was sentenced by the Bankstown Local Court to an aggregate term of imprisonment of 22 months, which was confirmed on appeal by the Downing Centre District Court on 28 July 2023.
On 5 August 2022, the applicant was convicted of common assault (DV)-T2 and contravene prohibition/restriction in AVO (Domestic) (3 counts) and destroy or damage property (DV)), for which he was sentenced by the Bankstown Local Court to multiple terms of imprisonment between 13 June 2022 and 12 August 2022, followed by a 12-month CCO with supervision. The circumstances contained in Police fact sheets are that, whilst an ADVO was in place against the applicant for the protection of his ex-partner, and while the applicant was on bail for previous domestic violence related offences, the couple began to disagree on a few topics while consuming alcohol together at their family home. The applicant’s ex-partner asked the applicant to leave, which ultimately resulted in the applicant grabbing a wire screen door of the home and pulling it off its hinges. When interviewed by NSW Police, the applicant "denied all allegations made by the victim, stating he was with his parents at their house…”
On 18 May 2022, the applicant was convicted of common assault (DV)-T2 and contravene prohibition/restriction in AVO (Domestic), for which he was sentenced by the Bankstown Local Court to a 12-month CRO. The circumstances of the offending conduct are contained in Police Fact Sheets which record that during a period of separation, the applicant bought tickets to the Aquatopia water park and planned to take his five children. When the applicant went to his ex-partner’s home to give her the tickets she advised the applicant that he was not invited to attend the Aquatopia water Park with her and their five children. The applicant "became quite angry and started to verbally abuse [his ex-partner] and swear at her. The [applicant] asked again to be let into the house and when [his ex-partner] denied him again the [applicant] pushed [his ex-partner] with one hand to her left shoulder and then tried to push past her, while she was still holding [their 1-year-old child] …". In an electronically recorded interview, the applicant admitted to being involved in an argument with his ex-partner but denied touching or pushing her shoulder (waterpark incident).
On 4 March 2020, the applicant was convicted of stalk/intimidate intend fear physical etc harm (domestic)-T2 and destroy or damage property (3 counts)), for which he was sentenced by the Bankstown Local Court to comply with an ICO with supervision for 5 months and 18 days. The circumstances of the offending conduct are contained in Police Fact Sheets and are that on 23 August 2019, when his ex-partner returned home from a night out with her friends, she engaged in a heated argument with the applicant over family matters. She went into her bedroom and locked the door. When refused entry, the applicant punched a hole on the door which caused the door to come off the hinges. At some point the [applicant] also damaged the home phone, which has left [his ex-partner] with no phone. On 26 August 2019, the applicant returned to the premises and demanded to be let in. The applicant’s ex-partner refused and so the applicant has then gone around to the side fence, the [applicant] kicked and pushed at the fence causing damage. The applicant has then jumped the fence and made his way to the back door, [his ex-partner] then ran to the back door and pushed the washing machine up against the door in a hope to stop the [applicant] gaining entry. The [applicant] had then kicked the door a number of times before leaving and returning to the front of the house. The [applicant] had then kicked the side passenger mirror of [his ex-partner] vehicle, causing the mirror to snap off. [His ex-partner] observed this from her bedroom window. [She] continued to ask the [applicant] to leave, the [applicant] has the[n] said "I'm going to kill you" whilst using both hands in a side wide motion across his neck area. [He] then left the location".
On 7 January 2015, the applicant was convicted of assault occasioning actual bodily harm (DV)-T2, for which he was sentenced by the Bankstown Local Court to a 2-year good behaviour bond. The circumstances are contained in Police Fact Sheets which state that after consuming beers together at the Oasis Hotel to celebrate the applicant's new job, the applicant and his ex-partner got into a verbal argument over the applicant accusing her of spending too much time texting her boss in relation to work issues. Closer to home, the [applicant] and [his ex-partner] engaged in a scuffle where [his ex-partner] states the [applicant] has attempted to fend off [his ex-partner] by using his open hand and hitting [her] to the jaw area causing immediate pain. [His ex-partner] and [the applicant] continued to scuffle with [his ex-partner] biting the [applicant] on his right arm. When NSW Police arrived at the home, they noticed blood to the inner bottom lip of [his ex-partner] and blood stains on her blouse. In an electronically recorded interview, the applicant’s version of events did not match that of his ex-partner. He stated that she followed him outside where the argument escalated with [his ex-partner] biting the [applicant] first. It was at this time that the applicant stated, “she bit me, so I elbowed her”.
Further, the applicant has numerous criminal convictions related to driving offences, despite him never holding a driver’s licence in Australia. This includes 10 occasions of him driving during a disqualification period or without a licence, and 1 occasion of negligent driving, involving him colliding and causing damage to another vehicle while disqualified. The applicant was declared a habitual offender on 14 July 2011, and disqualified from driving between 2010 and 4 April 2028. On more than one occasion, he was caught by NSW Police driving whilst disqualified with his minor children in the car, including on 12 January 2013 and 29 August 2013.
The remaining balance of the applicant's criminal offending includes stealing, shoplifting and robbery in company (for which he was sentenced to a suspended 15-month term of imprisonment on 11 May 2006). The applicant also has a conviction for possession of a prohibited drug on 11 February 2016.
The nature and seriousness of the applicant's offending conduct weighs very heavily against revocation of the cancellation decision.
Risk of Reoffending
For the following reasons I consider the applicant to be a medium risk of reoffending.
The applicant has demonstrated a serious disregard for the Australian justice system and its laws through his offending conduct, including continual domestic violence offending, which has occurred notwithstanding deterrent measures, including an ADVO, CCO, CRO and ICO, and having been formally counselled about the potential impacts on his migration status in 2007. This is reflected by the sentencing remarks of Magistrate Prowse in the Bankstown Local Court on 23 January 2023. It was remarked that the applicant does not think the law applies to [him] and [he] thinks that [he doesn’t] have any consequences visited upon [him]. The sentencing Magistrate was of the view that the applicant's continual domestic violence offending need[ed] to be addressed with a significant penalty.
The applicant's conduct does not suggest that he is remorseful for any of his offending conduct, particularly in regard to his domestic violence offences. The applicant has previously denied significant aspects of the offences in Police interviews and at contested hearings. Most recently, in his Personal Circumstances Form, despite being convicted of multiple counts of both common assault and assault occasioning actual bodily harm against his ex-partner, the applicant claimed that "I have never laid a hand on my partner". He accused her of "making up stories because of her insecure thoughts". Similarly, the applicant plead not guilty in relation to his most recent offending and gave evidence in the Bankstown Local Court on 23 January 2023 that charges against him were based on false allegations made by his ex-partner.
At hearing, the applicant appeared more accepting of his involvement in parts of his offending conduct. The applicant continued to deny the circumstances of his most recent offending conduct in 2023. The applicant accepted his recent breaches of the AVO but explained that he was only trying to contact his ex-partner to check in on the wellbeing of his children, to apologise for his behaviour and to end the relationship, despite knowing that the AVO was in place at the time. He agreed that he did damage the screen door and pushed his ex-partner in 2022 but denied ever threatening to kill her in 2019. The applicant stated that his biggest fight with his ex-partner was in 2015 but maintained that he didn’t hit her, he only elbowed her as a reaction to being bitten.
The applicant was asked about his dishonesty with Police in the past during electronically recorded interviews to which he said he lied because it was just how I felt at the time; I was fearful of the situation I was in; I was nervous; and/or, no one tells the Police the whole truth. This cavalier attitude attempted to downplay the significance of being untruthful to Police and highlights his disregard for law enforcement.
The applicant has a history of prohibited drug and alcohol use, without any meaningful rehabilitation. Despite the applicant completing a course for drug and alcohol use while incarcerated, he has since returned multiple positive urinalysis tests whilst incarcerated in 2023, including for methylamphetamine, buprenorphine, cocaine, and cannabis. At hearing the applicant said that the courses changed his understanding and motivation for his drug use, and while he did use drugs again, he said it was for social reasons and not for his previous motivation of dealing with anxiety and depression. I fail to see how this explanation reflects positively on the applicant’s rehabilitation.
The applicant has stated that he completed a domestic violence course in early 2023, before his most recent conviction for his last offences. He explained that he now understands domestic violence but failed to adequately express any real insight into his offending conduct. He explained that the reason for his offences was because of the toxic relationship and because of trust issues. I do no accept that the applicant understands or accepts any responsibility for his actions.
Additionally, in a Sentencing Assessment Report dated 9 December 2019 (Sentencing Report), the applicant was found to have "minimised his behaviour" for offences he was ultimately convicted of on 4 March 2020, and the applicant was found to be a medium risk of reoffending. It stated that "[ his ex-partner] would have known that I wasn’t going to kill her" and "she keeps nagging about the same thing". It was also reported that the applicant appears to have limited insight into his offending behaviour and the ongoing impact his actions may have on the victim and his children.
The applicant now states that he has ended his relationship with his ex-partner. He said there is no plan to reconcile. He said that the cause of his domestic violence offences were because of the toxic relationship with his ex-partner, and now that he is out of the relationship, he won’t be reoffending. As a current AVO is still in place, the applicant expressed that his main focus was on his children, and he planned to engage a family law lawyer to assist with putting into place co-parenting plans should he be released. I also note that the applicant’s father currently organises visits with the children, and he says that he is happy to continue the arrangement if needed should the applicant be released.
I am not comforted by the current state of the applicant’s relationship with his ex-partner. As previous history indicates, the applicant and his ex-partner separated in 2017, 2018 and 2019. In the Sentencing Report, it was noted that the applicant reported that if released, he will not resume a relationship with her as he wants to “break the cycle” of violence. On each occasion they reconciled.I also note that the waterpark incident occurred at a time that the applicant and his ex-partner were separated.
While the applicant has the support of family members in Australia, such support was available to him in the past and evidently did not deter him from reoffending.
Given the nature and seriousness of the applicant’s offending conduct, if the applicant were to reoffend, the harm inflicted on the Australian community would likely include significant physical and psychological harm to individuals. Any risk of reoffending, even a low one, is unacceptable.
As a whole, this primary consideration weighs very heavily against revocation.
Family Violence
Paragraph 8.2(2) of Direction 99 provides that this consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under s 501 or s 501CA has been afforded procedural fairness.
"Family violence" is defined at paragraph 4(1) of Direction 99 as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, most relevantly, an assault, stalking, and intentionally damaging or destroying property. A member of a person's family for the purpose of the definition of "family violence" includes a person who has, or has had, an intimate personal relationship with the relevant person, as per paragraph 4(1) of Direction 99.
As already detailed in these reasons, the applicant has a significant history of domestic violence related offences. The frequency and repeated nature of the applicant's acts of "family violence", occurred against the same victim over a period of several years between 2016 and 2023, despite the terms of ADVOs and other deterrent measures, including a CCO, CRO and ICO.
This consideration weighs very heavily against revocation of the cancellation of the applicant’s visa.
Strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. Paragraph 8.3 first directs attention to the impact of the Tribunal's decision on the applicant's family members:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
…
4) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant arrived in Australia on 12 October 1988 as a young child. He has predominantly been in Australia since that time, including the majority of his formative years. During this time in Australia, the applicant has created a family by way of having five children. He also has an extensive extended family in Australia including his mother and father.
I accept that the applicant has worked consistently as an adult in Australia and has made a positive contribution to the Australian community through this employment, football and through volunteering at his Church.
The applicant has provided a large number of letters of support from family members and community members in Australia. There is no evidence of the impact on family members should the applicant be returned to Fiji, but they all speak positively of the applicant, particularly as a father to his children. I accept that the applicant’s children will be affected by the applicant’s removal from Australia. This is covered in more detail when considering the primary consideration of the best interests of minor children in Australia.
This primary consideration weighs heavily in favour of the revocation of the cancellation decision.
The best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction 99 requires decision-makers to make a determination as to whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child affected by the decision.
There are five children relevant to this primary consideration, aged between 15 and 3 years. The Minister accepts that a revocation decision would be in the children’s best interests, however, questions the weight to be afforded to this consideration.
Prior to his incarceration, the applicant was sharing the parental responsibilities for his children with his ex-partner and was providing financially for them. The applicant’s former wife has been fulfilling the parental role since the applicant’s incarceration. The applicant has claimed that his ex-partner is struggling financially to care for the children while he is incarcerated, however, I do not have any evidence to support this submission. Should the applicant be released into the community, he has expressed an intention to co-parent with his ex-partner and to play a parental role in his children’s lives.
It also appears that the applicant has had very limited meaningful contact with all of his children recently. The applicant explained at hearing that his ex-partner has not enabled visitation or contact with him, and I note that the applicant’s recent breaches of his AVO was in part to enquire about his children. I accept that the applicant has maintained some contact though text messages and phone calls with his oldest son and has provided letters from a number of his children, however this contact has been limited. A Case Note Report by Corrective Services dated 14 August 2023 refers to the applicant using drugs because he was "missing his children and upset that he had not had much contact with them". This is consistent with a letter from his youngest daughter dated 18 March 2023, which acknowledges that "I know it's been a long time since I've wrote to you".
Should the applicant be returned to Fiji, and given the current AVO, I accept that contact with his children would be difficult and very limited. They may maintain contact through telephone or electronic means and through the post, however I do accept that with the younger children, this may prove more difficult initially and would likely require the mother’s assistance. The applicant’s children could also visit the applicant in Fiji however, again I accept that this would require their mother’s consent, support, and time to travel to Fiji. Without this support, the children may not travel to Fiji to see their father until they reach 18 years of age.
The applicant’s oldest child has provided a statement dated 18 May 2024, in which he expresses that it would be very hard for us kids if you leave us and we won’t have a father figure to grow up with, who will guide us and support us.
There is no evidence that the applicant subjected his children to any form of abuse or neglect. Although I do note that the waterpark incident occurred while his ex-partner was holding their daughter who was one at the time. Should the applicant be released into the community and reoffend, the applicant will not necessarily play a positive role in his minor children's lives. This is a concern given his history of drug use and family violence against their mother.
For these reasons, on balance, this primary consideration weighs heavily in favour of the revocation of the cancellation decision.
The expectations of the Australian community
Paragraph 8.5 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
…
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa, notwithstanding the fact that the applicant has resided in Australia for the majority of his life. This is particularly so given the nature of the applicant’s offending involved repeated domestic violence offences (paragraph 8.5(2)(a) of Direction 99).
This primary consideration weighs significantly against revocation of the mandatory cancellation decision.
Other Considerations
Other considerations are set out in Direction 99, at paragraph 9(1). The considerations relevant in this case are the legal consequences of the decision and the extent of impediments if removed.
Impact on Victims
The applicant contends that his ex-partner should be considered under this consideration as she would be forced to raise 5 minor children without the financial, physical and emotional support towards the children from their father. The applicant also asks for the applicant’s minor children to be treated as victims and to consider their best interests for this consideration, however, their interest have already been considered under a primary consideration.
Any matters relevant to the applicant's former spouse and mother of his children (as opposed to his ex-partner as a victim) are not required to be given undue further weight under this consideration; see Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26]-[27].
In any event, there is no evidence from his ex-partner’s indication that the applicant's removal from Australia would have a negative impact on her. Additionally, an AVO remains in place for the protection of his ex-partner, and it is plain that she has gone to the effort to restrict the applicant's interactions with her and their children.
This consideration is neutral.
Extent of impediments if removed from Australia
Direction 99 provides, at paragraph 9.2, that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
There are no substantial language and cultural barriers for the applicant to be returned to Fiji. While he has spent the majority of his life in Australia, he did return to Fiji to complete his schooling and attended one semester of University in Fiji studying economics and law. The applicant has worked in Australia as a labourer for many years which is a skill he could rely on when seeking work in Fiji. The applicant claims that it would be difficult to find work in Fiji and said that his brother, who was returned to Fiji on account of his criminal convictions, was finding it very hard to find work. The applicant’s mother and father are still currently supporting the applicant’s brother financially in Fiji, until he finds work.
The applicant does not have any relationship with his extended family in Fiji and only knows his brother, who is still attempting to re-establish himself in the country.
The applicant is relatively young (39 years of age) with no diagnosed medical or psychological conditions disclosed in his Personal Circumstances Form.
I accept that the applicant is likely to face emotional detriment if he is returned to Fiji and separated from his five Australian citizen children, his immediate and extended family and his community and country which is all he has known since the age of 4. The applicant would likely be barred for entering Australia indefinitely (or at least for the foreseeable future) even as a temporary entrant.
While the applicant may face some difficulty in re-establishing himself in Fiji, this factor would only present as a short-term hardship and would not preclude resettlement. I consider that this factor weighs moderately in favour of revocation.
Decision
The primary considerations of the protection of the Australian community, family violence; and the expectations of the Australian community weigh significantly in favour of not revoking the visa cancellation decision. I am not persuaded that these primary considerations are outweighed by the applicant’s strength, nature, and duration of ties to Australia; the best interest of minor children; and the extent of impediments if removed.
The decision under review is affirmed.
I certify that the preceding 75 (seventy five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
........................................................................
Associate
Dated: 4 June 2024
Date(s) of hearing: 27 May 2024 Solicitors for the Applicant: Mr S Hermis, Hermis & Associates Solicitors for the Respondent: Mr M Gao, HWL Ebsworth Lawyers
0
1
0