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

Rosakuwai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 809 (21 April 2022)
Division:GENERAL DIVISION
File Number(s):2022/0852
Re:Ratu Sakeasi Rosakuwai
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:21 April 2022
Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 24 January 2022 not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution the mandatory cancellation of the Applicant’s visa is revoked.
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Mr S Evans, Member
CATCHWORDS
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
21 April 2022
Mr S Evans, Member
INTRODUCTION

The Applicant seeks review of the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to revoke the mandatory cancellation of his visa.
The Applicant is a 45-year-old citizen of Fiji who immigrated to Australia age 20 on 2 February 1997. On 30 August 2019 the Applicant was convicted of sexual intercourse without consent (the primary offence) and sentenced to a term of imprisonment of 3 years and 4 months.
The Applicant’s visa was cancelled on 5 March 2020. Cancellation of the Applicant’s visa was mandatory as he did not pass the character test as he had a substantial criminal record and was serving a full-time sentence of imprisonment.
On 25 March 2020 the Applicant requested that the Minister revoke the cancellation of the visa. On 24 January 2022 a delegate of the Minister decided not the revoke the cancellation of the Applicant’s visa. The Applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal) on 4 February 2022.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (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 paragraph 501(6)(a) and subsection 501(7) of the Act; or
(b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
It is agreed by both parties that the Applicant does not pass the character test as he has a ‘substantial criminal record’ as defined by the Act. Therefore, the only relevant issue is whether there is another reason to revoke the original cancellation decision.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Section 501CA of the Act applies where the Minister makes a decision under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which 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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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 8.4(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.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
EVIDENCE AND FACTS
Background
At age 20, the Applicant immigrated to Australia to join his mother and two sisters, along with some of his uncles and aunts also living in Australia. His mother had immigrated to Australia after marrying an Australian citizen.
In 2004 Applicant has three chidlren with his former partner who I will refer to as SI. Child U who was born in 2008, Child D who was born in 2010 and Child E born in 2015. Following the birth of Child U, the Applicant and SI relocated to Sydney. The Applicant returned to Melbourne for a period following his mother’s diagnosis with cancer, and later returned to Sydney, where he has resided since.
The offending which led to the cancellation of the Applicant’s visa occurred in March 2018. He was charged on 10 April 2018 and sentenced on 30 August 2019 for sexual intercourse without consent. He has been in prison or immigration detention since that time.
Between April 2018 and August 2019 the Applicant remained in the community and was subject to an AVO preventing contact with SI. Throughout this period he was able to arrange to see his children through his lawyer who acted as an intermediary between he and SI. This arrangement ensured the Applicant did not breach the conditions of the AVO whilst it was in place.
The Applicant began working in 1998 and has held jobs in warehousing and logistics for most of his adult life. He holds a certificate of warehousing and prior to his imprisonment he had been promoted off contract into full time employment. He gave evidence that he did not work for two months when he returned to Melbourne after his mother’s cancer diagnosis, but the exact period in which he was unemployed is unclear.
The Applicant has had two substantial adult relationships. The first with his ex-partner, SI, and the other with Michelle Donovan. The Applicant met SI in 2004. They moved in together in 2008. Their relationship broke down in 2017 on account of the Applicant’s gambling and abuse of alcohol.
In 2018 the Applicant had moved out of the family home that he had shared with SI and their three children but returned as he was unable to afford to pay rent. In March 2018, shortly after returning to live with SI and their children, the offending which led to the sexual assault conviction occurred.
Following the offending and prior to his imprisonment, the Applicant met his current partner Ms Donovan, who gave evidence in support of the Applicant.
Evidence of Michelle Donovan
Ms Donovan has provided a statutory declaration and gave oral evidence at the hearing.
Ms Donovan is a mother of four children and carer to her mother. She and the Applicant met through an online dating site. When she and the Applicant met he told her about the pending charges for which he was later imprisoned. She told the Tribunal he was honest about the nature of the offending from the start of their relationship. She gave evidence that she and the Applicant had discussed his alcohol and gambling problems.
They are yet to live with each other, but Ms Donovan told the Tribunal that should the Applicant be released from immigration detention and is on parole she will offer him accommodation. Ms Donovan does not believe he will reoffend, and his remorse is genuine. She said the three years of not seeing his children has been an incredible lesson to learn.
In her statutory declaration, Ms Donovan explained her reasons for believing the Applicant is remorseful for his offending and committed to being a better person. She wrote in part:
I know that Ratu is remorseful about his criminal convictions. Before he went into jail, Ratu told me that if him going to jail was going to make his ex-partner happy or ease her burden, then he was happy to do it. I think this statement really showed how sorry he was for hurting her and that he had reflected on his actions. I know that Ratu is very upset about not being able to see his kids, and about how his actions have destroyed his family.
I know that Ratu is dedicated to rehabilitating himself and becoming a better person. Ratu was on the list for anger management and other behavioural courses when he was in prison but he was prevented from enrolling due to his visa cancellation. When Ratu went into Villawood, he not only enrolled into many courses (anger management, depression management, drug and alcohol abuse, stress management), but he also completed them. I am so proud of him for completing these courses. It’s a really positive step for him because in the past he thought he was handling his emotions the right way at the time – but now he has educated himself and has realised his past behaviour wasn’t helpful to anyone. He is better resourced now and he is equipped to navigate and fix his behaviours. He is keen to continue classes and psychology if he is able to – he has told me that he has put his name down to get psychology appointments at Villawood (but hasn’t been able to get an appointment yet).
Evidence of Adi Arieta Ratokalau
Adi Arieta Ratokalau is the Applicant’s sister. She writes on 2 November 2021 that the Applicant was given responsibility of looking after her and their sister when growing up. She writes that the Applicant worked hard for his family and describes him as kind and honest. She writes that the Applicant told her that if allowed to stay in Australia his plan is to find work so he can support his children. She was concerned about how he would ‘cope mentally’ with what had happened but she and their sister have been encouraging him and reassuring that they are there to support him.
DISCUSSION
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard 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 nature and seriousness of the Applicant’s conduct to date
Criminal history
The Applicant’s criminal history is set out in an Australian Criminal Intelligence Commission report.
On 30 August 2019 he was convicted of sexual intercourse without consent in the Campbelltown district court for which he was sentenced to a term of imprisonment for three years and four months. A further offence of sexual intercourse without consent was also taken into account. It was this offending that led to his imprisonment and mandatory cancellation of the visa.
On 23 November 2010 the Applicant was convicted of drive with middle range PCA for which he received a community service order and was disqualified from having a licence for two years (the drink driving offence). The circumstances of the offending are set out in a NSW Police Facts Sheet which the Applicant did not dispute. The Applicant had been drinking and had fallen asleep at the wheel whilst stopped at an intersection. He was apprehended whilst asleep at a set of traffic signals with his vehicle in drive and his foot on the brake.
On 28 February 2001 the Applicant was fined $200 and ordered to pay $400 compensation following a conviction for destroy or damage property <=$2000.
The primary offence
When he appeared in the District Court of New South Wales on 30 August 2019 the Applicant plead guilty to the offence of sexual intercourse without consent. Before the Tribunal is the statement of agreed facts that was before the court. In sentencing the Applicant, Judge Arnott summarised the facts and circumstances of the offending.
The victim of the offending was the Applicant’s former partner SI. The Applicant and SI had ended their relationship in January 2018. The Applicant had lived outside the family home until 26 March 2018 before moving back in with SI and their three children because he was unable to afford accommodation.
On 29 March 2018 the Applicant took his family out for dinner. When they went to bed SI permitted the Applicant to sleep with her in her bed with their baby between them as the downstairs room where the Applicant had been sleeping was being repainted. The Applicant asked SI to have sex. SI said ‘no’, got out of bed and went into their seven-year-old daughter’s bedroom. The Applicant followed her, grabbed her by the arm and pulled her out of bed. SI told the Applicant he was hurting her and asked him to leave her alone as she wanted to go to sleep. The Applicant said ‘[w]ell come sleep in your bed’. SI, concerned about waking her daughter, went back into her room. The sentencing remarks record that:
When they got back to her room the offender closed the door. The victim got back into bed with her baby daughter who was in the middle of the bed. The offender repeatedly told her that he missed her and wanted to have sex whilst trying to pull her pants down. Although she tried to stop him, he was able to pull her pyjama pants and underwear down. He then knelt over the victim and tried to initiate sex. However, she pushed him away. He then grabbed her on the vagina and forced his fingers into her vagina causing her pain… He then put his head downwards down towards her groin but she kicked him away. After several kicks he got off the bed, left the room and went downstairs.
The following day SI asked the Applicant in reference to the assault the evening prior, ‘What was going through your head to do that?’, to which he replied ‘Sorry’.
That evening SI and the Applicant got into her bed. She lay against the wall with the baby lying between them. He told her to sleep on his side of the bed. When she refused he said ‘Don’t you want me?’. She responded that she did not want him to touch her and not to do again what he had done the previous night. The Applicant then started to pull her pyjama pants down as she held onto them, but he pulled them down and penetrated her vagina with his fingers for a couple of seconds causing her pain.
At this time the bathroom door was opened by their nine-year old-son and the Applicant stopped what he was doing. SI pulled her pants up and told the Applicant that he ‘should not be doing that’. She then got out of bed and walk downstairs where she picked up her phone and car keys and went out to the car. SI drove up the street and called the police. While she waited for the police the Applicant sent her text messages apologising and asking her to return to the house.
In sentencing, Judge Arnott observed that whilst the offence was relatively brief in duration it took place in her own home where she was entitled to feel safe which is an aggravating factor. He concluded he found it was an offence of sexual penetration motivated by a desire to dominate the victim because she had failed to comply with his expectations.
The nature and seriousness of the applicant’s conduct to date
The Applicant’s offending must be considered very serious because the Direction provides that sexual offences and crimes of a violent nature against women are viewed very seriously: subparagraphs 8.1.1(1)(a)(i) and 8.1.1(1)(a)(ii). The Applicant’s offending was sexual offending which also involved digital penetration and a degree of force. Furthermore, the prescribed examples of very serious conduct include acts of family violence which the applicant has committed: subparagraph 8.1.1.(1)(a)(iii).

The very serious nature of the offending was recognised by the Court which found that although the offence fell below the middle of the range of objective seriousness for offences of this type, but ‘grave’ nonetheless. The seriousness is also reflected in the sentence of imprisonment of three years and four months. I note also that the offending involved the presence of a young child.
The Applicant does not dispute that the offending is very serious. Some allowance can be made for his limited criminal history. I accept the primary offending was not frequent but it was repeated. Overall, the nature and seriousness of his offending weighs heavily against revoking the mandatory cancellation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by the non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Should the Applicant reoffend by committing further sexual offences and family violence the harm to individuals or the Australian community would be very serious. The sentencing court in this case had evidence of the significant harm caused to the victim. The nature of the drink driving offence is such that should he reoffend there is potential for serious harm to other road users.
In sentencing the Applicant, Judge Arnott quoted a report from psychologist Sarah Van der Velde dated 22 August 2019, a sentencing assessment report and a letter from a psychologist from corrective services. He observed that the Applicant has a ‘history of problem drinking and [had] an extramarital affair which was a source of friction during his marriage’, and acknowledged the Applicant had been drinking at the time of the offence.
With reference to the psychologist’s report, his Honour observed that the Applicant:
…has isolated himself from social and emotional support since the offence. He has been emotional and very depressed about the impact of the offence upon his family situation and has been seeing a general practitioner for mental health support. Ms Van der Velde states that his anxiety symptoms are consistent with an adjustment related disorder.
His Honour found that the Applicant was sorry for what he had done and accepted he had reasonable prospects of rehabilitation and not reoffending. He stated in part:
I find the offender is sorry and contrite for what he has done but it necessitated him being charged with a criminal offence before that true realisation dawned on him that what he was doing was seriously wrong. The reason I make this finding is because he acknowledged to police what he did was wrong and has pleaded guilty. He further demonstrated a degree of reflective insight into the psychological impact of his actions upon the victim recorded in the sentencing assessment report. Whether or not his contrition, however, is deep and heartfelt, I am unable to determine. One of the reasons for this is that after committing Count 1 he, nonetheless, reoffended when committing the Form 1 matter.
I find he has reasonable prospects of rehabilitation and not reoffending. The reason for this finding is his limited criminal history and good working history, a degree of insight he has gained into the impact of his actions and the fact that both psychologists’ assessed him as a low risk of sexual offending.
[emphasis added]
The Court recommend that upon release from custody, the Applicant be assisted to integrate back into the community with a combination of employment and treatment for alcohol and emotional issues.
A NSW Department of Corrective Services case note report dated 29 July 2019 records that the Applicant was ‘confused’ at the time of his offending as he had “slept with the victim with consent the night before the offence’ and had been ‘sleeping together ever since they broke up”.
In sentencing the Applicant His Honour observed that the Applicant explained his offending on the basis that past consensual contact with the victim meant that she would be interested in having sex with him at the time of the offence. His Honour described this as a ‘misguided attitude’.
In a written reply to a Notice of Intention to Cancel his visa dated 24 March 2020, the Applicant stated that when he moved in with SI just prior to the offending he saw it as a ‘good chance’ for them to ‘get back together again’. He writes that they both love their children and living together and doing things together ’was like the family that we were before’.
A later Corrective Services case note report dated 13 April 2021 records that the Applicant claimed to have been having consensual sex with SI after the breakup when he had moved back into the family home. Consistent with the report, the Applicant claimed he and SI had ‘[h]ad consensual sex’ the day before the offending in an offence mapping exercise completed on 12 April 2021. The claim is repeated in a Corrective Services pre-release report dated 6 July 2021.
In the course of the hearing the Applicant conceded that his repeated claim that he and SI had engaged in consensual sex in the period prior to the offending was untrue.
The April 2021 case note report states that the Applicant was:
…forthcoming in admitting that at the time of offending he did not understand what consent meant. Additionally, he claims he did not continue to touch the victim to fulfill his own sexual needs, but more so to try and ascertain the status of the relationship between him and the victim after months of uncertainty. He claimed since being incarcerated, he has done a lot of reading to educate himself on the meaning of consent to ensure he will never make the same mistake again. Ratu is able to articulate the meaning of consent and has stated that in future he intends on discussing a women's wishes her before physically touching her to ensure any future sexual contact is consensual.
The 6 July 2021 pre-release report records that:
Throughout assessment, Mr Rosakuwai accepted responsibility for his offending and appeared ashamed of his behaviour. He demonstrated genuine remorse and expressed motivation to address his offending behaviour and avoid further offending. Furthermore, he cited a desire to holistically improve as a partner moving forward.
The pre-release report also concludes that the Applicant demonstrated greater understanding of the factors relating to this offending including his alcohol consumption:
Substance use
Mr Rosakuwai described himself as a social drinker until about 2010. He reported that after the birth of his youngest child, his ability to socialise and spend quality time with the victim reduced, with their lives becoming predominantly about children and parenting. Mr Rosakuwai recalls feeling "distant" from the victim, resulting in him experiencing feelings of loneliness. He was unsure how to rectify his feelings towards the relationship, so he began to increase his alcohol consumption, drinking to the point of intoxication on a semi-regular basis; he identified his alcohol use as being a source of conflict in their relationship. At this time, Mr Rosakuwai did not regard his alcohol use as problematic, but claims he began to recognise this following the offences.
On both nights of offending, Mr Rosakuwai had consumed a moderate amount of alcohol with the victim. Despite the psychologist report stating Mr Rosakuwai claimed alcohol was not a factor in his offending, he conceded throughout assessment that he would have been unlikely to sexually assault the victim had he not been under the influence. This is a shift in Mr Rosakuwai's thinking and progress in his ability to identify his factors related to offending, as previous documents related to these offences indicate Mr Rosakuwai dismissed alcohol as a factor in his decision making. Mr Rosakuwai's criminal convictions coupled with information obtained during interviews suggest it is likely alcohol abuse contributed to his poor decision making and subsequent offending behaviour.
Mr Rosakuwai claims to have addressed his alcohol abuse in the period between his arrest and incarceration. Despite claiming his alcohol consumption significantly decreased during this period, he did not engage with intervention services; however, he did briefly discuss alcohol abuse with a psychologist while awaiting sentencing. Although he no longer regards his alcohol use as being problematic, he cited a willingness, to engage in alcohol and other drug (AOD) counselling if released to parole supervision.
The pre-release report concludes that the Applicant’s offending does not reflect any premeditation or deviancy. However it concludes that the Applicant had limited insight into the impact of his offending on the victim beyond his acknowledgement he betrayed her trust and caused additional emotional and financial strain for her.
In a statutory declaration dated 20 March 2022 the Applicant reflects on his state of mind at the time of the offending. He writes in part:
I take full responsibility for what happened and I am very remorseful for what I did. It was wrong, and I cannot argue otherwise.
At the time I didn’t really understand what consent meant. I thought I just wanted to have sex with her and when she said no, I just thought she was mucking around, or that she didn’t really mean no. Now I know about consent, and I know that no means no and you need to stop right there. My ignorance about this is not an excuse for my behaviour, but I do want to explain why I acted the way I did.
I think back now about what I did (and the fact that I did it the second night in particular) and I can’t explain why. It doesn’t make sense to me. I can’t justify it.
I’m so sorry for the pain I have caused my ex-partner and my kids. I will never re-offend again. I’ve learnt how to communicate properly, especially with my partner.
The Applicant claims not to have had access to courses whilst in prison because his visa had been cancelled. However, he has completed courses whilst in immigration detention relating to anger management, stress, depression and drug and alcohol abuse. Certificates of completion are in evidence.
He gave evidence that he intends to be a good father and stay away from trouble. He says that he does not believe he will reoffend because the experience since his primary offence has taught him a lot. Should he be released back into the community he intends to do more about his problem with drinking and gambling. His plan is to return to work, initially through the agency which organised his most recent employment and led to the full-time position, so that he may financially support his children.
Conclusion as to the protection of the Australian community
The Corrective Services pre-release report assessed the Applicant as being a medium-low risk of reoffending according to the Level of Service Inventory – Revised and in the low range of committing a further sex offence. In sentencing, Judge Arnott said that the Applicant had reasonable prospects of rehabilitation and not reoffending. His assessment was based on the Applicant’s limited criminal history, good work history and the degree of insight he has gained into the impact of his actions and the fact that both psychologists had assessed him as a low risk of reoffending.
There is significant evidence of the Applicant’s remorse for his offending. He pleaded guilty and NSW Corrective Services case notes observe that he was genuinely ashamed of what he had done, and Ms Donovan noted the detrimental impact of having lost contact with his children.
The evidence supports a conclusion that the Applicant has been compliant and respectful whilst in prison and immigration detention. Apart from an isolated incident of non-compliance with bail conditions, which he rectified shortly after, it is not in question that he sought to comply by the terms of the AVO and the conditions of his bail whilst he was awaiting sentencing. That his reporting requirements were reduced confirms this.
However, it is of considerable concern that the Applicant misrepresented the nature of the relationship between he and SI as recently as July 2021. Doing so casts doubt on the level of insight he has into his offending and raises legitimate questions about his prospects of rehabilitation.
The Minister submits that the Tribunal should find the risk of reoffending is real, albeit medium to low. The Minister’s contention is that additional weight should be given to the sentencing remarks which rate the Applicant’s prospects of rehabilitation as ‘reasonable’ and that he did not fully appreciate the seriousness of his offence until he was charged. I note also that the July 2021 pre-release report concludes the Applicant was able to identify some impact of his offending on the victim but his insight is limited. The officer casts some doubt on his comprehension of all aspects of his offending, observing that:
The lack of insight expressed by Mr Rosakuwai may in part be due to the shame and embarrassment he reported feeling for his behaviour. Despite this, he expresses a strong motivation to avoid further offending.
The evidence suggests that the Applicant has learnt from his offending. Importantly, he has demonstrated an understanding of the role that alcohol and gambling played in the breakdown of his relationship with SI. He has identified alcohol in particular as a coping mechanism, and something he started to rely on after the birth of Child D in 2010. The Applicant has completed an online course relating to alcohol. It is of some concern, however, that whilst he recognises the role alcohol and gambling played in his offending, there is little evidence to suggest he has actionable plans to continue treatment should he be released back into the community.
Overall, I find that the protection of the Australian community weighs against revocation. There is consensus in the documented reports and sentencing remarks that there is at most a medium to low risk that the Applicant will reoffend. Despite his concerning misrepresentation of the nature of the relationship between him and the victim, I am prepared to accept the assessments of risk on the basis of the Applicant’s limited criminal record until the primary offence, his strong motivation to re-establish contact with his children and the salutary experience of being imprisoned and having his visa cancelled. Nonetheless, the nature of the offending is of sufficient seriousness that I afford this primary consideration significant weight.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
Family violence is defined in Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
The Applicant’s primary offending relates to family violence. The victim of the Applicant’s sexual offending was his former partner and the family violence was undoubtably serious and had a significant impact on his victim. It also took place in the presence of children.
The Applicant accepts that his conduct constitutes family violence as defined in subsection 4(1) of the Direction. However, it is submitted that there is no evidence of it being a pattern of behaviour over the course of their long relationship and he has made an effort to address the underlying drivers of the offending behaviour, which I accept.
Subsection 8.2(1) sets out that the government has serious concerns about conferring the privilege to remain in Australia to non-citizens who engage in family violence.
I am satisfied that the Applicant’s conduct involved family violence as set out in the Direction, and this primary consideration weighs against revoking the mandatory cancellation.
PRIMARY CONSIDERATION 3 - BEST INTERESTS MINOR CHILDREN
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant is the father of three minor children. Child U was born in 2008, Child D in 2010 and Child E in 2015. Since his imprisonment, the Applicant has not had any contact with his children. I acknowledge that he has been unable to do so on account of his circumstances, notably his inability to make contact with the children’s mother.
At the hearing the Applicant gave evidence that the last time he saw his children was shortly before he went to prison in August 2019. In the period between the offending and his imprisonment he was able to arrange to see the children regularly, sometimes for up to three days each fortnight.
When he was with his children he took them on activities including the movies or he would spend time with them cooking and shopping. The children would often stay with him in his apartment overnight and they would sleep in his bed and he would sleep on the floor. In a written statement dated 24 March 2020 he stated he always made the most of the time he had to spend with his children and that he and his children are very close.
Whilst SI would message the Applicant directly when making arrangements for him to see their children, he would never text her directly as he was prohibited from doing so. He conceded that he does not know where the children are now but he is determined to have contact with them and spend more time with them. Should he be released back into the community his plan is to have a lawyer seek them out and arrange access on his behalf.
Evidence before the Tribunal confirms that the Applicant continued to pay child support up until his imprisonment. He gave evidence that he also contributed to their school fees and uniform costs and provided groceries for them to take home to their mother.
Whilst the Minister acknowledges that the best interests of each of the children is that the mandatory cancellation be revoked, it is submitted that the Applicant’s contact with them ceased after he was imprisoned and his ability to re-establish a close relationship with them is uncertain.
In considering all the available evidence I am satisfied that the Applicant is a loving father whose absence from his children’s lives would be extremely detrimental to the children. He has indicated, and I accept, that should he be permitted to remain in Australia the interests of his children would be his highest priority. He maintains that he does not seek to disrupt his children’s lives and there is every indication that SI would grant reasonable access as she has done so in the past.

Currently, there is uncertainty as to how he might go about reconnecting with his children and managing ongoing contact, but he was able to do so successfully previously and has indicated an appreciation of the sensitivities of doing so in an appropriate manner. I accept that should he be removed from Australia, as things currently stand, there is a very strong prospect that it would mark a permanent and irrevocable severance of the relationships between the Applicant and each of his children.
For these reasons, the best interests of the minor children weigh very heavily in favour of revocation.
PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRLAIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
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.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending which include crimes against women, the Australian community would expect that the Applicant should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of his criminal conduct.
This consideration weighs against revocation of the cancellation decision, however I give this consideration moderate weight in recognition of the principle set out at 5.2(4) that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who, like the Applicant, have lived in the Australian community for most of their lives.
OTHER CONSIDERATIONS
I now turn to considering the other relevant considerations set out in the Direction.
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in Fiji.
The Applicant’s has not visited Fiji since 2004 when he returned to the funeral of his grandfather. I accept his evidence that he has extended family in Fiji but they have not maintained contact. The Applicant contends that he would not have access to accommodation if he is returned to Fiji.
Whilst he is relatively healthy, the Applicant is taking medication for his anxiety and stress, and pain relief for injuries to his shoulder and knee.
The Minister submits that the impediments to removal are far from insurmountable. Applicant can speak the language and has an obvious connection to Fiji, having lived there until age 20 and returning as he did in 2004 for his grandfather’s funeral. The Applicant has not returned since 2004, but that he did so then indicates a degree of connection to Fiji.
On the basis of the evidence I am satisfied that the Applicant would face some challenges re-establishing himself in Fiji, but accept the Minister’s contention they would not be insurmountable.
For these reasons this consideration weighs in favour of revocation, but is afforded little weight.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia for a period of 25 years, more than half his life. I accept that given the period of time the Applicant has spent in Australia he is entitled to some weight under paragraph 9.4.1 of the Direction.
The Applicant has two Australian citizen sisters. They and their families reside in Victoria, also he has an uncle in NSW. The Applicant has a close relationship with his sisters and their children, which is confirmed in the statement by Adi Arieta.
Ms Donovan states that the Applicant has been a major source of moral support to her and encourages her to do the things that make her happy. Ms Donovan acknowledged that she and the Applicant had not lived together in the past and that her children have yet to meet the Applicant. However, I do not doubt her sincerity or commitment to the relationship with the Applicant. I am satisfied that should the Applicant’s visa cancellation not be revoked, it would have a significant and detrimental impact on Ms Donovan and the Applicant’s family members, notably his sisters.
The Direction provides that more weight should be given to Applicant’s who have contributed positively to the community. Before the Tribunal are income tax returns and a letter confirming his most recent employment. This evidence supports the Applicant’s contention that he has been gainfully employed since 1998, paid taxes and sought to make a positive contribution since first arriving in Australia.
I accept the Minster’s contention that there is limited evidence of the Applicant’s ties to the community beyond limited evidence in relation to his family members. I note also that he appears to have spent most of the time living in NSW whilst his sisters and their families live in Victoria.
The Minister also submits that it would be open for the Applicant to maintain these relationships through electronic means, just as he is currently with his sisters and Ms Donovan.
Though the Applicant does not have an extensive connections to the Australia community, I am satisfied that he has meaningful and deep connections. Should he be deported it would be detrimental to his sisters and Ms Donovan in particular. As such, this consideration weighs in strongly in favour of revoking the mandatory cancellation.
CONCLUSION
This is not an easy decision to make. The nature of the Applicant’s offending means that the primary considerations in relation to the protection of the Australian community and family violence weigh against revoking the mandatory cancellation. Primary consideration four, the expectations of the Australian community, also weighs against the Applicant.
The weight afforded to these considerations is lessened most notably by the primary offence being his first serious criminal offence in over two decades in which the Applicant has resided in Australia. His remorse and the evidence that he has been compliant and cooperative with authorities since he was charged with the primary offence support the assessments of him being in the low range of further similar offending and his claim to have strong prospects of rehabilitation.
The Applicant’s desire to reconnect with his children is not in question. He continued to have access to them after the offending, despite the difficulties and legal expense. He also continued to pay child support supported them in other ways. Given the circumstances, and the age of his children, the argument that the relationship between the Applicant and his children would be permanently and irrevocably severed is persuasive and given significant weight.
Should he return to Fiji, it would be detrimental to Ms Donovan and the Applicant’s extended family in Australia, notably his sisters. I also accept that the Applicant would have a challenging time re-establishing himself financially and building an emotional support network in Fiji. Both these considerations weigh in favour of revoking the cancellation decision.
On balance, I am satisfied that the best interests of the children, the Applicant’s ties to the Australian community and the impediments he would face in Fiji outweigh the other considerations. As such, there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 24 January 2022 not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..................................[SGD]......................................
Associate
Dated: 21 April 2022

Date(s) of hearing: 5 April 2022

Solicitor for the Applicant: Ms V Lenton, Lenton Migration Law & Consultancy

Solicitor for the Respondent: Mr N Rogers, AGS

[2022] AATA 809

21 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Jurisdiction

Date(s) of hearing:	5 April 2022
Solicitor for the Applicant:	Ms V Lenton, Lenton Migration Law & Consultancy
Solicitor for the Respondent:	Mr N Rogers, AGS