Sadruga and Minister for Home Affairs (Migration)

[2019] AATA 119

Sadruga and Minister for Home Affairs (Migration) [2019] AATA 119 (14 January 2019)

Administrative Appeals Tribunal

1. The date on the first page of the decision 14 January 2018 is to be replaced with the date 14 January 2019.

ADMINISTRATIVE APPEALS TRIBUNAL No: 2018/6436 General Division Re: Pita Sadruga Applicant And: Minister for Home Affairs Respondent CORRIGENDUM TRIBUNAL: Senior Member A. Nikolic AM CSC DATE of CORRIGENDUM: 30 January 2019 PLACE: Melbourne The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 , to alter the text of the decision in this application as follows: [sgd]................................................................... Senior Member Division: GENERAL DIVISION File Number: 2018/6436

Re:

Pita Ratabua Sadrug a APPLICANT And Minister for Home Affairs RESPONDENT Decision Tribunal: Senior Member A. Nikolic AM CSC Date: 14 January 2018 Place: Melbourne The Tribunal affirms the decision under review. [sgd]........................................................................ Senior Member A. Nikolic AM CSC MIGRATION – visa refusal – failure to pass the character test – criminal history between 1995 and 2017 – convictions for violent offences – prolonged immigration misconduct –Protection of the Australian Community and Expectations of the Australian community outweigh other considerations weighing in favour of visa approval – decision affirmed LEGISLATION Migration Act 1958 (Cth) CASES Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 Sadruga v Minister for Immigration & Anor [2017] FCCA 411 Schuster-McFadyen v Minister for Immigration and Citizenship 124 ALD 68 XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385 SECONDARY MATERIALS Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA DFAT Country Information Report, Fiji (27 September 2017) < FOR DECISION Senior Member A. Nikolic AM CSC 14 January 2019 INTRODUCTION 1. On 22 October 2018 Mr Pita Sadruga had his visa application refused by a delegate of the Minister for Home Affairs (“the Minister ”) under s 501(1) of the Migration Act 1958 (Cth) (“the Act ”). [1] Mr Sadruga has asked the Administrative Appeals Tribunal (“ AAT ”) to review the Minister’s decision. 2. A hearing was held in Melbourne on 7 January 2019. Mr Sadruga attended and gave evidence by videoconference. He was self-represented. The Minister was represented by Ms Rachel Noronha of Clayton Utz. The following documents were accepted into evidence: (a) G-documents numbering 330 pages pursuant to s 501G of the Act; [2] (b) Summonsed documents from the NSW Police Force dated 17 December 2018 and 3 January 2019; [3] (c) Department of Foreign Affairs and Trade (“ DFAT ”) Country Information relating to Fiji; [4] (d) The Applicant’s Statement of Facts Issues and Contentions (“ ASFIC ”) with accompanying annexures lodged on 2 January 2019; [5] and (e) The Respondent’s Statement of Facts, Issues and Contentions (“ RSFIC ”) with accompanying annexures lodged on 24 December 2018. [6] 3. For the reasons that follow, I affirm the decision to refuse Mr Sadruga’s visa application. BACKGROUND 4. Mr Sadruga was born in Fiji on 28 March 1971 and is currently 47 years of age. He arrived in Australia on 4 July 1990 as a 19 year-old stowaway. He was detained the following day but escaped from immigration detention on 22 July 1990. He remained in the community without a valid visa for approximately two years. On 28 August 1992 Mr Sadruga was detained by New South Wales Police and deported to Fiji. [7] Key aspects of Mr Sadruga’s immigration history after deportation follow: (a) 11 February 1996 . Mr Sadruga re-entered Australia [8] as the holder of an UC-456 Business (Short Stay) (Class UC) visa, which was valid for one month; [9] (b) 7 March 1996 . Mr Sadruga was granted a further short-stay visa valid until 7 May 1996; [10] (c) 3 May 1996 . Mr Sadruga lodged an application for a further short-stay visa, which was refused on 27 March 1998; (d) 2 November 2001 . Mr Sadruga lodged an application for a Protection (Class XA) visa, which was refused on 29 November 2001. [11] Mr Sadruga sought review of this decision by the Refugee Review Tribunal (“ RRT ”), which affirmed the refusal decision on 18 December 2002; [12] (e) 27 February 2003 . Mr Sadruga sought the Minister’s personal intervention regarding the refusal of his Protection Visa under s 417 of the Act. [13] The Minister declined to intervene on 7 March 2003; [14] (f) 29 October 2004 . Mr Sadruga again sought the Minister’s personal intervention, [15] but the Minister declined to intervene on 4 August 2005; [16] (g) 16 November 2004 . Mr Sadruga was granted a Bridging E (Class WE) visa on departure grounds. He did not depart Australia and remained in the community without a valid visa for a further seven years until September 2011; [17] (h) 1 September 2011 . Mr Sadruga lodged a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa application, [18] sponsored by his partner at the time. Given his status as an unlawful non-citizen, Mr Sadruga was requested to attend a Compliance Counter and was granted a Bridging E (Class WE) visa. [19] The Bridging visa ceased on 24 August 2012; [20] (i) 8 February 2013 . Mr Sadruga’s former partner withdrew her sponsorship of his visa application. [21] For reasons that remain unclear, the Respondent continued to treat Mr Sadruga’s partner visa application as pending. In response to questions from the Tribunal, Ms Noronha advised that a request had been made to access Mr Sadruga’s archived file. While it was speculated that sponsorship may have been reinstated, Ms Noronha had no further instructions at the time of the hearing. Given the withdrawal of sponsorship in 2013 and the new relationship Mr Sadruga’s former partner entered into and remains in to the present day, it is unclear how Mr Sadruga could have remained eligible for a partner visa sponsored by his former partner. That is not a matter for the Tribunal, however, and my consideration of this matter proceeds on the premise that Mr Sadruga’s partner visa application remained pending until being refused in October 2018; (j) 11 February 2016 . Following his convictions in the Burwood Local Court on 17 December 2015, the bridging visa held by Mr Sadruga at that time was cancelled under s 116 of the Act; [22] (k) 19 July 2016 . The AAT affirmed the February 2016 decision to cancel Mr Sadruga’s bridging visa; [23] (l) 18 August 2016 . Mr Sadruga submitted an application for review of the AAT decision in the Federal Circuit Court, which was dismissed on 6 March 2017; [24] (m) 19 April 2018 . Following his convictions in the Fairfield Local Court on 6 April 2017 and sentence imprisonment, Mr Sadruga received a Notice of Intention to Consider Refusal (“the Notice” ) of his partner visa application; [25] (n) 22 October 2018 . After considering Mr Sadruga’s responses to the Notice, his visa application was refused by the Minister under s 501(1) of the Act. [26] Mr Sadruga acknowledged receipt of the visa refusal decision on the same day. [27] EVIDENCE Offending history 5. Mr Sadruga’s Australian National Police Certificate is at Attachment 1. His Fijian Police Clearance Certificate is at Attachment 2. These certificates disclose a history of offending over 20 years as follows: (a) He was convicted of two counts of Common Assault in Fiji on 13 September 1995; (b) He has been convicted of numerous offences in Australia between 1996 and 2017, including: a ssaulting police; resisting police; multiple counts of common assault; use offensive weapon with intent to commit indictable offence; family violence; driving and property offences. His most recent convictions are: (i) 6 April 2017 : Use of offensive weapon with intent to commit indictable offence, common assault, destroy or damage property <=$2000. Mr Sadruga was sentenced to 12 months imprisonment with a non-parole period of nine months, [28] fines totalling $2500, and a three-year good behaviour bond; (ii) 17 December 2015 : Armed with intent to commit indictable offence, common assault, and contravene prohibition/restriction in Apprehended Violence Order (“ AVO ”) (domestic). Mr Sadruga received a nine-month sentence of imprisonment; (iii) 16 January 2014 : Destroy or damage property and stalk/intimidate intend fear/physical harm (domestic). Mr Sadruga received a 15-month good behaviour bond. Evidence of Mr Sadruga 6. Mr Sadruga elaborated upon his early life in Fiji, where he completed primary school, high school and one year of a science program at the University of the Pacific. He submits that financial circumstances precluded his completion of tertiary study and peer pressure convinced him to ‘jump ship ’ to Australia as a stowaway. He said ‘ a lot of boys of Fiji descent jumped ship’ and had informed him he would find plenty of work in Australia. Mr Sadruga submits that he did not know it was illegal to arrive in Australia as a stowaway, only learning about the serious implications after being detained by immigration authorities. He escaped from immigration detention some two weeks later because he ‘ hadn’t finished what [he] came here to do .’ Mr Sadruga says that as a 19 year-old he had a sense of ‘ machoness’ (sic). After escaping from immigration detention he conceded that he had remained unlawfully in the community for approximately two years. He also acknowledged that he had worked during this period despite knowing it was illegal to do so. 7. After being deported to Fiji, Mr Sadruga said he did not return to study but played football and drew on savings earned in Australia. He remained in Fiji for approximately four years and made plans to establish an export business. He was subsequently granted a visa to re-enter Australia and did so on 11 February 1996. Mr Sadruga stated on his passenger arrival card that his occupation in Fiji was ‘ Factory Manager’ and he intended to remain in Australia for 30 days on business. [29] He received a number of short-term visa renewals, but upon expiry of his last valid visa on 12 February 1998, Mr Sadruga conceded that he had again remained unlawfully in Australia for a period of approximately four years. When asked why, Mr Sadruga said enquiries with migration agents and lawyers revealed there were no legal options for him to remain in Australia. He also conceded that he worked during this four-year period despite knowing it was illegal to do so. 8. Mr Sadruga agreed that after applying for a protection visa in November 2001, he was granted a number of bridging visas in 2001, 2003 and 2004. After his protection visa application was refused and his appeals to the RRT and for Ministerial intervention were refused, his final bridging visa (on departure grounds) ceased on 18 November 2004. Despite knowing the consequences after two previous unlawful stays in Australia, he again failed to depart Australia. Mr Sadruga submits that his first two children were born in 2003 and 2004 and his wife did not want to return to Fiji. He remained in Australia unlawfully for another seven years. Mr Sadruga submitted that during this time ‘ the Department came looking but they saw our little daughters and left us alone .’ There is no independent evidence, however, to corroborate Mr Sadruga’s claim that immigration authorities tacitly accepted his presence in Australia without a valid visa. Mr Sadruga continued to remain in Australia without a visa after the birth of his third child in 2009, stating that by then the younger children were going to school and his wife still did not wish to return to Fiji. 9. Mr Sadruga said that further bridging visas were granted to him after the submission of his partner visa application in 2011, but his last bridging visa expired in February 2016 and he has not held a visa since then. When it was put to Mr Sadruga that he had falsely answered questions about his criminal record in his partner visa application in 2011, he disagreed, submitting that ‘I made mistakes…I didn’t want to mislead the Department .’ 10. Mr Sadruga has spent most of the last three years in prison or immigration detention, except for five months in the community on parole. During cross-examination, Mr Sadruga agreed he had remained unlawfully in Australia for a total of approximately 14 years, stating he ‘ knew at some stage it would come to the crunch .’ 11. Mr Sadruga was taken through his criminal convictions in Fiji and Australia. In relation to convictions for common assault in Fiji, Mr Sadruga contends he ‘ wasn’t part of it – I didn’t touch them but the police charged us all .’ He claimed that his convictions in 1996 for assaulting and resisting police in Australia related to outstanding warrants from his arrest and deportation in 1992. He was asleep after a ‘ big night out ’ when the police woke him and his first instinct was to run. It was in the context of the police chasing and catching him, and taking him into custody, that he was charged and convicted of assaulting/ resisting police. In relation to his 2006 conviction for common assault, Mr Sadruga said his wife jumped at him and he pushed her away. He then accidently stepped on his wife’s foot causing her toe to be broken. Mr Sadruga was asked why police were called and he was subsequently convicted of assault for what he claimed was a ‘ playful scuffle ’. [30] Mr Sadruga said that under Australian law, even if he verbally abused someone it would be considered an assault. 12. When asked about the circumstances of his January 2011 conviction for contravening an AVO to protect his wife, Mr Sadruga said: ‘ probably there was some discussion and things got out of hand and she called the police .’ When asked about the circumstances of his 2014 convictions for stalking/intimidation, Mr Sadruga said he approached his former partner after she dropped their children off at school and had repeatedly offered her a ride, which she refused. When asked if his former partner was protected by an AVO at that stage, Mr Sadruga said: ‘ I think she was, but I’m not really clear on it .’ 13. When asked about the circumstances of his convictions for violent offences in December 2015, Mr Sadruga said he went to talk to his wife and took an iron bar with him just in case his wife’s new partner tried to attack him. He submitted that he ‘ didn’t assault anybody – I just took an iron bar along with me .’ When asked why he was subsequently convicted of assault, Mr Sadruga said ‘ I touched my wife on the back .’ He said he ‘ was taken to Burwood Police Station and put into prison for four months .’ Mr Sadruga said there was no AVO in place to protect his wife at that time, but an AVO was in place to protect her new partner. Mr Sadruga said that AVOs were also still in place to protect his former partner’s father and her new partner until 2019. He was also currently subject to two good behaviour bonds. 14. When asked why the Tribunal should believe Mr Sadruga’s contention that he would not engage in violent conduct in the future, Mr Sadruga said he was now reformed and rehabilitated. He stated: ‘ I have committed no crimes since 2015 and have been able to contain myself .’ He referred to a one-week ‘ workshop into AVO’s ’ at the Silverwater Correctional Complex in 2017, but in his oral evidence claimed to have lost the certificate of completion. Mr Sadruga’s evidence in this regard is inconsistent, given his written submission that no certificate was issued from the course he undertook in prison. [31] He said he was unaware of the seriousness of AVOs until completing that course. In response to questions, Mr Sadruga agreed that the conditions of AVOs he was required to abide by were explained to him by issuing authorities and his lawyer. He insisted, however, that the course he had undertaken while imprisoned reinforced the fine detail and importance of abiding by AVOs. Given Mr Sadruga’s claim that he had lost the certificate for the course he relied upon, the Tribunal was unable to satisfy itself of either the content of the course or Mr Sadruga’s attendance. 15. Mr Sadruga also referred to counselling he had undertaken with BaptistCare as further evidence of his rehabilitation. [32] It was put to Mr Sadruga that the correspondence from BaptistCare showed he had only attended five of nine scheduled sessions of counselling relating to domestic and family violence. Mr Sadruga stated he ‘ couldn’t afford to get to the place …[and]... it was unfortunate I couldn’t get there on time. ’ Mr Sadruga also referred to counselling sessions he had undertaken while in immigration detention. It was put to him that these group sessions were largely health-related and not specifically targeted to his propensity for domestic violence. Mr Sadruga disagreed, submitting that the counselling and group sessions he had undertaken allowed him to ‘ develop spiritually .’ He said he was brought up a Christian and did not really understand what Christianity meant until the last three years in prison and immigration detention. When it was put to Mr Sadruga that his reliance on faith was an often-repeated claim over the years before courts and tribunals, but had not resulted in enduring behavioural changes, he responded: ‘ It’s by going through these struggles that you realise what the Bible wants you to do .’ He claimed a renewed determination to be law-abiding, which he had tried to convey to others in prison and while in immigration detention. 16. Mr Sadruga acknowledged that his criminal record and immigration misconduct was ‘ not good ’ and ‘ not acceptable .’ He also conceded that his responses to questions about criminal offending on his partner visa application were ‘ not answered right ,’ insisting these were unintentional mistakes. He claimed to have ‘ done his best ’ over the years to ‘ get legalised and abide by Australian law ,’ but after consulting lawyers and migration agents, had discovered ‘ there was no visa class that would let me remain in the community .’ 17. Mr Sadruga said he needed to remain in Australia to provide for his children’s future. He agreed that contact with his children had been severely limited in recent years because he had been in prison or immigration detention, and that his children lived with his former partner who had primary parental responsibility. He said he had last seen his children a year or so ago when they visited him in Villawood Detention Centre. Mr Sadruga said he talked to his children by telephone almost every day. 18. Mr Sadruga agreed that his children had been at home on occasions when police were called and had witnessed some of his domestic violence offences. He stated: ‘ I know it’s not right to do what I’ve done in front of my daughters…I’m not proud of what I’ve done in front of them or their mother. ’ He submitted, however, that he had never subjected his children to violence. He said conflict in the home was caused by ‘ these other people crowding my house .’ He was referring in this regard to his father-in-law and brother-in-law who had moved in with him and his former partner in 2008. He said that if allowed to remain in Australia, he would apologise to his former partner and her relatives for his past conduct. 19. Mr Sadruga said if his former partner had wanted to separate from him, she would have presented him with a ‘ divorce certificate by now ’ but that they were still ‘ legally married .’ While acknowledging his former partner had been in a relationship with another man for approximately four years and they had a child together, Mr Sadruga said he intended to talk with her and if she wanted to ‘ come back’ to him, he would remain in Sydney. If she wished to remain with her current partner and did not want Mr Sadruga to live close by, he would instead live with his brother and father in Melbourne. If his wife refused to agree on shared custody arrangements for their children, Mr Sadruga said he needed to remain in Australia to contest their custody. 20. In relation to a possible return to Fiji, Mr Sadruga stated ‘ there is no welfare to support me .’ Although he speaks Fijian and has a brother and other extended family members living in Fiji, Mr Sadruga said his relatives had their own families to look after. Mr Sadruga said he could not make a living in Fiji and, despite what was contained in the DFAT Country Report, contended that ‘ Fiji is very unstable .’ He said he wanted a second chance to present his ‘ reformed self ’ in Australia. If given that opportunity he stated that he would respect Australia’s laws and become a law-abiding citizen. Evidence of Mr Jotame Ratabua 21. Mr Sadruga’s younger brother, Mr Jotame Ratabua, gave evidence at the hearing. [33] He elaborated upon his arrival in Australia with his wife and son, and that they initially resided with Mr Sadruga and his former partner in Sydney. When asked whether he had witnessed any conflict in the home while living with Mr Sadruga’s family, Mr Ratabua said he had not. Since Mr Sadruga’s imprisonment and immigration detention, Mr Ratabua had kept in touch with Mr Sadruga’s children and was hosting them for a holiday in Melbourne at the time of the hearing of this matter. 22. In his statement Mr Ratabua claimed that if allowed to remain in Australia, his brother could either find work or become their father’s carer in Melbourne. The Tribunal understands Mr Ratabua has assisted in his father’s care for a number of years, including when Mr Sadruga was living in Sydney. Neither Mr Sadruga nor Mr Ratabua referred to their father’s care needs in any substantive way in their oral evidence. The Tribunal notes a letter from Mr Sadruga’s father dated 6 June 2018, in which he refers to having a single leg and being a diabetic. [34] However, Mr Sadruga’s father did not attend the hearing and there is no medical evidence before the Tribunal relating to his medical circumstances or care needs. While the letter from Mr Sadruga’s father states that he ‘ would be very happy to have [Mr Sadruga] come and stay with me ,’ the Tribunal notes that any care needs have been provided by others during recent years due to Mr Sadruga’s residence in Sydney, his imprisonment and immigration detention. Letters from Mr Sadruga’s children 23. The Tribunal notes the letters from Mr Sadruga’s children contained in the G-documents [35] and ASFIC. The children are currently aged 15, 14 and 9. These letters understandably reflect the children’s love for their father and a desire to spend more time with him in the future. Letters and statements in support of Mr Sadruga 24. The Tribunal notes a number of typed letters in the G-documents, purportedly from family members and friends, some of which are unsigned. [36] Others have no address or contact details for the author. [37] A Statutory Declaration from a former work colleague dated November 2015 is of limited relevance to current circumstances. [38] The contents of many of these letters are very general in nature and most do not reflect full knowledge of the extent of Mr Sadruga’s criminal offending and immigration misconduct. The Tribunal also notes the consistent layout and repetitive content of many of these letters, giving rise to concerns about the extent to which each was independently drafted. The authors of these letters did not attend the hearing and were not available for cross-examination. The Tribunal places little weight on these letters. 25. The Tribunal notes the letter from Mr [redacted] dated 8 June 2018, who says he was surprised by Mr Sadruga’s incarceration, which he believes was influenced by the ‘ love of his children .’ [39] Mr [redacted] says he is willing to offer Mr Sadruga a contract with his company ‘ in either Sydney or the Gold Coast as soon as he is released ,’ because being compassionate ‘ sometimes…means the giving of a second chance .’ This letter only refers to Mr Sadruga’s most recent imprisonment and does not reflect full knowledge of his criminal offending or immigration misconduct. The author was not available for cross-examination and the Tribunal places limited weight on this letter. LEGISLATIVE FRAMEWORK 26. The jurisdiction of the Tribunal to review the decision made by the Minister’s delegate is provided for at section 500(1)(b) of the Act. 27. Section 501(1) of the Act is one of a number of discrete powers conferred on the Minister under section 501. It provides for refusal to grant a visa, if the applicant does not satisfy the Minister, or their delegate, that they pass the character test. 28. The character test is defined at sections 501(6) - 501(11) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Mr Sadruga’s visa application was refused on the basis of section 501(6)(a), which states that a person does not pass the character test if ‘ the person has a substantial criminal record (as defined by subsection (7)) .’ 29. Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if ‘ the person has been sentenced to a term of imprisonment of 12 months or more. ’ Section 501(12) defines ‘ imprisonment’ to include any form of punitive detention in a facility or institution. 30. If it is found that Mr Sadruga fails the character test, I must then determine whether the discretion under section 501(1) of the Act to refuse his visa should be exercised. [40] Guidance in exercising the discretion is found in Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” . DIRECTION NO. 65 31. The Minister is empowered by section 499 of the Act to issue the Direction. S ection 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction. [41] Paragraph 6.1 of the Direction sets out the following objectives: 6.1 Objectives (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case. … (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499. 32. By way of general guidance, paragraph 6.2 of the Direction provides: 6.2 General Guidance (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable. (2) …. (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… 33. The principles referred to under General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction: 6.3 Principles (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused. 34. Paragraph 7(1)(a) of the Direction states that a decision-maker ‘ must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa .’ Part B is the relevant Part of the Direction for Mr Sadruga’s application, as it contains the considerations relating to the refusal of a visa application. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different and continues: Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. 35. If it is determined that Mr Sadruga does not pass the character test, three primary considerations set out in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case: (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. 36. Paragraph 12(1) of the Direction requires that other considerations are to be taken into account in deciding whether to refuse a visa, including but not limited to: (a) International non-refoulement obligations; (b) Impact on family members; (c) Impact on victims; (d) Impact on Australian business interests. 37. Paragraph 8(3) of the Direction states that ‘ Both primary and other considerations may weigh in favour of, or against, refusal…of the visa .’ Paragraph 8(4) states that ‘ Primary considerations should generally be given greater weight than the other considerations .’ Paragraph 8(5) states that ‘ One or more primary considerations may outweigh other primary considerations .’ As held in Schuster-McFadyen v Minister for Immigration and Citizenship , [42] the Tribunal can give equal or greater weight to any consideration. ISSUES 38. The issues to be resolved in this case are: (a) Whether Mr Sadruga passes the character test at section 501(6) of the Act; and (b) If he does not, whether the discretion in section 501(1) of the Act to refuse to grant him a visa should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case. Does MR SADRUGA Pass the Character Test? 39. In his written submissions to the National Character Consideration Centre, Mr Sadruga stated ‘ I…acknowledge that I have a substantial criminal record and do not pass the character test …’ Mr Sadruga similarly concedes in his ASFIC that he does not pass the character test. [43] As Mr Sadruga has previously been sentenced to a term of 12 months imprisonment, he has a substantial criminal record by virtue of section 501(7)(c) of the Act. I am satisfied he does not pass the character test. Having made that finding, I must make a supervening determination on whether or not to exercise the discretion granted under section 501(1) of the Act to refuse his visa application. primary considerations Protection of the Australian community from criminal or other serious conduct 40. Paragraph 11.1(1) of the Direction states: 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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. 41. Paragraph 11.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. In considering Mr Sadruga’s conduct, the following factors from paragraph 11.1.1 are relevant: a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously. b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious; c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act; d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered serious; e) The sentence imposed by the courts for a crime or crimes; f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; g) The cumulative effect of repeated offending; h) Whether the non-citizen has provided false or misleading information to the [D]epartment, including by not disclosing prior criminal offending; i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia. The nature and seriousness of the conduct 42. Mr Sadruga contends that he is not a violent person and does not have a violent nature. However, his record of convictions spans 22 years, two countries and includes numerous offences that have a violent dimension. He was found guilty of two counts of common assault in Fiji in September 1995. Less than a year later he was convicted in Australia of assaulting and resisting police and has been convicted of common assault on three subsequent occasions between July 2005 and June 2017. Other convictions with a violent dimension include stalk/intimidate, being armed with the intention of committing an indictable offence, use of an offensive weapon with the intention to commit an indictable offence, and multiple instances of contravening a prohibition or restriction contained in an AVO. These orders were in place to protect victims of Mr Sadruga’s domestic violence, most notably his wife, members of her family, and her new partner. 43. Mr Sadruga submitted that he has not committed any criminal offences whilst in immigration detention. [44] But the evidence reveals that he escaped from immigration detention in 1990 and remained unlawfully in the community for two years until being arrested and deported. Consistent with paragraph 11.1.1(1)(c) of the Direction such conduct is considered serious. The Tribunal also does not accept his submission that ‘ there is no evidence that [his] criminality was committed against vulnerable members of the community .’ The evidence shows he has committed offences against his former partner and against his former partner’s father, who was an elderly citizen at the time of the relevant offending. Under paragraph 11.1.1(1)(b) of the Direction such conduct is considered serious. The Tribunal also does not accept Mr Sadruga’s contention that his criminal history ‘ is not substantial .’ He has been convicted of multiple violent offences over more than two decades. 44. Although Mr Sadruga’s initial Australian offences were dealt with by way of non-custodial sentences, his most recent convictions have attracted sentences of imprisonment totalling 21 months since 2015. Imprisonment is the last resort in the sentencing options available to the courts, reflecting the objective seriousness of Mr Sadruga’s offending. 45. Mr Sadruga contextualises his 2017 convictions as occurring while he was living apart from his former partner and an AVO was in place. He claims to have learned by telephone during a work visit to Canberra that his wife’s new partner had sworn at his children. He drove back to Sydney that evening, arriving at his former partner’s house at approximately 10.30pm at night. He stated his intention was to ‘ check on my daughters ’ and admitted to confronting his wife’s new partner. He claimed to have been attacked by his wife’s new partner, father-in-law and brother-in-law. The sentencing remarks, however, weigh influentially against Mr Sadruga’s version of these events. The court did not accept Mr Sadruga’s version and was satisfied that Mr Sadruga had ‘ used his car in connection with an attempt to run down those witnesses.. .’ [45] 46. In relation to other convictions, Mr Sadruga consistently seeks to minimise his culpability by claiming self-defence, or presenting his actions as accidental, unintentional or misconstrued. He claims some convictions were ‘ unfair ’ or resulted from inadequate legal representation. Mr Sadruga’s effort to downplay his conduct and blame others gives rise to concerns about the true extent of his remorse, rehabilitation and insight into his unacceptable conduct. 47. Mr Sadruga submits that his violent offences are predominantly limited to members of his own family, which in no way excuses his conduct or weighs in his favour. It is difficult to understand his submission that he has ‘ forgiven ’ his wife and members of her family, and is willing to look after his wife’s child with her new partner if she ‘ decides to come back. ’ Moreover, he states ‘ if she wants to continue her ways right now, I freely give her the decision of choice of the life style she chooses …’ Mr Sadruga’s perspectives in this regard are difficult to reconcile with his expressions of remorse and claims of rehabilitation. It is he, after all, who has been convicted of violent offences. Moreover, his approval or otherwise of the life his former partner chooses is of no assistance to his application. 48. Deputy President Kendall, as he then was, discussed domestic violence offences in XFKR and Minister for Immigration and Border Protection (Migration) : [46] …in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place… 49. I respectfully adopt Deputy President Kendall’s comments. 50. I do not accept that any weight should be given to Mr Sadruga’s age as a factor mitigating the seriousness of his criminal offending or protracted immigration misconduct. Mr Sadruga’s contention that ‘ what happened in 1990 marred my life ,’ is not supported by the available evidence. After his deportation in 1992, he was given another visa to re-enter Australia legally in 1996, but chose instead to remain illegally for a further 11 years. His suggestion that he continues to pay the price for youthful and immature misjudgements is entirely dispelled by the violent and persistent nature of his offending between 1995 and 2017, and his repeated immigration misconduct. Immigration misconduct 51. Mr Sadruga concedes and the Tribunal finds that he has knowingly lived and worked in Australia as an unlawful non-citizen for approximately 14 years. Although he acknowledges the responses he gave in his partner visa application regarding his criminal offending were wrong, he claims this was a mistake. The Tribunal finds his explanations unconvincing. It is telling in the Tribunal’s view that Mr Sadruga answered ‘ Yes ’ to a subsequent question about whether he had previously been asked to leave Australia, and elaborated in the comments section about his deportation over 20 years earlier in 1992. Yet his incorrect response related to criminal convictions in the same year he submitted his partner visa application. It is more probable than not Mr Sadruga intentionally omitted his criminal history to enhance his prospects of a favourable decision on his partner visa application. I am satisfied that Mr Sadruga has knowingly engaged in protracted immigration misconduct to secure the benefit of prolonged residence in Australia. 52. The evidence supports a finding that Mr Sadruga’s persistent disregard of Australia’s criminal and immigration laws is objectively serious . Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct 53. Paragraph 11.1.2 of the Direction states: (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable. (2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. (3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re- offending; and ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and iii. the duration of the intended stay in Australia. (4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa. 54. Were Mr Sadruga to commit further violent offences, the nature of harm arising to members of the Australian community is potentially very serious and could encompass outcomes including death or serious injury. For example he has previously armed himself with an iron bar when approaching his wife and her new partner, and deliberately tried to use his vehicle to run down members of her new partner’s family. His evidence in written submissions is that he ‘ had no excuse to act recklessly and took matters into [his] own hands and underestimated [his] hidden rage, as a very protective father and an emotionally jealous husband’s anger ’ (sic). What the evidence shows, however, is that Mr Sadruga committed offences and engaged in immigration misconduct both before and after the birth of his three children, and prior to the marital difficulties he says contextualises his poor decision-making. 55. The risk of Mr Sadruga engaging in similar criminal or other serious conduct in the future appear linked to his concerns about access to his children, and the limits imposed on that access by his former partner’s new relationship. This has previously caused him to confront his former partner, as well as her father, brother and new partner in breach of AVO’s. Mr Sadruga expressed remorse in relation to that conduct, claiming his Christian faith has been restored and is a protective factor in diminishing the risk of further offending. He submitted that he was a ‘ carnal Christian (sic) for a very long time, ’ during which he was engaging in unacceptable conduct based on his ‘ human power ’ instead of his spiritual power. He now claims to be a ‘ Godly man ’ (sic) who has made ‘ mistakes.’ [47] Mr Sadruga submits he has employed his renewed spirituality to assist other inmates in jail and immigration detention. The Tribunal finds Mr Sadruga’s submissions about the protective nature of his Christian beliefs unconvincing. He has regularly highlighted those beliefs as supporting his rehabilitation, only to commit further serious offences. In 2003 the RRT noted Mr Sadruga’s submission that he ‘ had grown out of his former ways and was a devoted Christian .’ [48] In submissions seeking the Minister’s personal intervention in 2003 and 2004, Mr Sadruga’s then legal representative referred to active church membership and leadership of the church’s youth program as evidence of Mr Sadruga’s reformed character. [49] In response to the Notice considering refusal of his visa application and in the present matter, Mr Sadruga again relies on his religious beliefs as a renewed foundation for a law-abiding future. 56. Mr Sadruga seeks credit for not having been ‘ convicted for any criminal offence between 18 December 2015…until 1 January 2019.’ [50] However, the evidence shows that since December 2015, Mr Sadruga has been sentenced to 21 months in prison and, with the exception of a five-month period of probation in the community, has either been in prison or immigration detention since that time. 57. The Tribunal is unconvinced by Mr Sadruga’s evidence that he is fully rehabilitated and does not constitute a risk of re-offending. The repetitive and prolonged nature of his offending and immigration misconduct gives rise to concerns about the genuineness of his remorse and extent of rehabilitation. His expressions of remorse would have been more convincing if he had adhered to Australia’s immigration laws after being deported in 1992. After being granted a visa to re-enter Australia in 1996, he chose instead to live and work illegally in Australia for a further 11 years. His remorse and diminished risk of re-offending could have been more compellingly demonstrated if he had abided by Australia’s laws after his initial Australian convictions in 1996. Instead he committed further violent offences over the next 20 years. His remorse and risk of re-offending might also have been more favourably considered if he had adhered to the conditions of AVOs taken out to protect his former partner, her new partner and members of her family. Instead Mr Sadruga repetitively breached AVO conditions. In relation to his partner’s new relationship since 2014, Mr Sadruga states in his written submissions that he seeks to play a continuing role in the lives of his children and his ‘ long time wife’ : [51] He blames members of his former partner’s family for the breakdown of his marriage, submitting that once he is out of detention he and his wife can resolve their differences amicably. [52] In other written submissions he states: …I understand that my wife has got another child…I told her that I was willing to look after that child if she decides to come back, and I will let her decide. I have forgiven her and her family members because I understands (sic) that no one is perfect… 58. It is difficult to understand the basis of Mr Sadruga’s forgiveness, given he is the one who has been repeatedly convicted for violent offences. His comments in this regard are inconsistent with someone who is truly remorseful or fully accepting of responsibility for their actions. 59. Mr Sadruga pointed to the rehabilitative activities he has undertaken and how his perspectives on dealing with family conflict have been improved. The evidence before the Tribunal in this regard is: (a) A two-paragraph letter from BaptistCare, which states that Mr Sadruga was booked in for nine sessions of counselling relating to Domestic and Family Violence from 22/7/2016 to 7/9/2016, but he only attended five sessions. [53] No reason is given in that letter for his non-completion of the nine booked sessions. Mr Sadruga’s explanation is that he could not afford to attend and it was unfortunate he could not get there on time; (b) Clinical records note that Mr Sadruga attended ten group discussions during March and April 2018 conducted in the immigration detention centre by the International Health and Medical Services (“ IMHS ”). [54] The group sessions were undertaken under the centre’s Health Promotion Program and covered issues like ‘Anger & Other Emotions’, ‘Hope & Meaning’, ‘Supportive Engagement’, ‘Defence Mechanisms’, ‘The Influence of Media’, and ‘Struggle Switch’. The reporting counsellor stated that Mr Sadruga participated in these group discussions. 60. On the available evidence the Tribunal does not accept that Mr Sadruga has been fully rehabilitated as he contends. His attendance on the BaptistCare course was incomplete and the IMHS counselling he referred to is of a general, health-related nature. The latter counselling is not specifically targeted to his issues with domestic violence. While the sessions he has completed to date are a step in the right direction, they are insufficient support for his contention that he is fully rehabilitated and does not constitute a risk of further offending. Moreover, he has only spent five months in the community on probation between last being released from prison and subsequently being taken into immigration detention. During this period of probation his liberty was constrained by good behaviour bonds and AVO conditions. Mr Sadruga’s claimed rehabilitation is incomplete at best and has not been fully tested in the community. 61. I also note Mr Sadruga’s evidence before the Fairfield Local Court in relation to his 2017 convictions, where he stated during cross-examination: 20. Q. …did you believe that you had the right to just go at 10.30 at their house? A. I’m their dad and they’re in trouble. I’ve got to go there and see them. 25. Q. She didn’t tell you she was in danger? A. She was upset. I would see my daughters if they are upset; I’ll turn up to their house. Q. You didn’t think it was appropriate to speak to her mother? A. The mother wouldn’t answer my phone calls. 62. The evidence shows that the positive changes Mr Sadruga often claims to have achieved coincide with court or tribunal appearances, or when his ability to remain in Australia is at risk. He has repeatedly demonstrated an inability to control his violent impulses when dealing with the realities of his relationship breakdown, the interference he perceives from his former partner’s relatives or her new partner, or when he is unable to have the access and influence he desires with his children. There is little beyond Mr Sadruga’s assurances that he will remain law-abiding in the future. On the evidence before me, the possibility of further violent offences by Mr Sadruga represents more than a low or minimal risk. 63. Having regard for the prolonged nature and circumstances of Mr Sadruga’s criminal offending and immigration misconduct, and the relatively limited nature of the rehabilitation he relies upon, I consider that the risk of Mr Sadruga committing further violent offences or serious immigration misconduct is unacceptable. 64. It follows that the primary consideration of protection of the Australian community from criminal or other serious conduct , weighs strongly in favour of refusing to grant Mr Sadruga’s visa. Best interests of minor children in Australia 65. Paragraph 11.2 of the Direction requires that I must determine whether visa refusal is, or is not, in the best interests of Mr Sadruga’s children. That consideration applies only if the child is, or would be, under the age of 18 years at the time the decision to refuse to grant the visa is made. In considering the best interests of the child, paragraph 11.2(4) provides: In considering the best interests of the child, the following factors must be considered where relevant: a) The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements; c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child; d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the 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. 66. The Tribunal is satisfied Mr Sadruga has three biological children who are Australian citizens and were under 18 on the date his visa application was refused. Mr Sadruga wants to be more involved in his children’s lives and, if necessary, contest their custody if shared care arrangements cannot be agreed with his former partner. 67. It is clear from the children’s letters that they enjoy a close and continuing relationship with Mr Sadruga, albeit one that has been conducted mostly by telephone during the last three years because of his imprisonment and immigration detention. Mr Sadruga’s children express a desire to spend more time with him. It is not possible from these letters to discern notable differences between the interests of Mr Sadruga’s three children, beyond their desire to maintain a close relationship with him. 68. Mr Sadruga submitted that because his former partner ‘ refused to arrange something formally ’ with him, he ‘ sometimes ’ transferred money into her bank account for the children. In that regard I note receipts in the evidence for a total of six electronic transfers to his former partner’s account during the period 30 April 2015 to 6 November 2015 totalling $660. There is no evidence of any other payments outside of this six month period some three years ago. There is also no evidence to support Mr Sadruga’s contentions that his children live in ‘ misery and hardship with the cost of living in Australia, ’ that they need him ‘ as a source of… incomes (sic) and support ,’ nor that he has been providing them with ‘ both fatherly care and motherly care .’ [55] 69. Mr Sadruga stated that if returned to Fiji, he could not sustain his own financial needs much less contribute financially to his children. There is no reliable evidence before the Tribunal, however, that Mr Sadruga’s children are dependent on him financially. Mr Sadruga also states that no other man will love and support his three children to the extent that he can as their biological father. In a statement to the Visa Applicant Character Consideration Unit (“ VACCU ”) dated 21 July 2018, Mr Sadruga goes further by implying there were safety concerns in relation to his daughters: I have great concerns about my daughters… We do hear stories of Children abuses done by family members and people that they trust. Now my concern is if my in laws and this man [redacted] call themselves Christians and yet directly disobeyed the Supreme Law (THE TEN COMMANDMENTS) of the Creator God whom they should have reverence and obey, but directly violating it… Than (sic) what guarantee would there be for the protection of my young daughters and are they really safe. I’m not suggesting that this will happen but just concern to prevent what could happen as we read in newspapers and watch in news how young children who become victims of this kind of scenarios. I honestly think that my children are and will be safer with me… … I am kind of suspecting that something is not right, I have overheard my youngest daughter on the phone crying, twice or three times because she was hungry and there was nothing to eat so with the meagre earnings that I earn as a the (sic) kitchen helper in the Education Area here in Detention on Christmas Island I buy snacks and toiletries for them and post it over. Just last 2 weeks ago, just before the school holidays they witnessed domestic violence, between their mother and this man [redacted]… 70. In his oral evidence before the Tribunal, Mr Sadruga made similar claims regarding the safety of his children and their current exposure to violence in their home. These claims were unsupported by any evidence. Mr Sadruga said he had not reported his concerns to the police or other authorities to protect his children from getting into trouble ‘ for leaking that information out …[and]… those adults may have their avengers on them when the authorities leave. ’ He also claimed in the ASFIC that his children have been diagnosed with ‘ severe major depressive disorder with depressed and anxious moods .’ There was no evidence of this beyond Mr Sadruga’s assertions. There is also no evidence to support Mr Sadruga’s contentions that the care being received by his children is in any way deficient, or that they are exposed to any of the other risks he raises. I therefore give no weight to these claims. 71. While finding that the interests of Mr Sadruga’s children weighs in his favour, less weight is placed on that consideration by virtue of his long periods of absence from their lives, the fact that Mr Sadruga’s former partner fulfils the primary parental role, and because of the family violence Mr Sadruga admitted committing in their presence. On his own evidence, such conduct represents a negative impact on his children. I note Mr Sadruga’s statement to the effect that, if he were given the opportunity, he would take steps to teach his daughters that his violent conduct was wrong. 72. I find that this primary consideration weighs somewhat in favour of not refusing Mr Sadruga’s visa application. Expectations of the Australian community 73. Paragraph 11.3(1) of the Direction states: 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 refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect. 74. Mr Sadruga’s criminal offending and immigration misconduct is entirely inconsistent with the reasonable expectations of the Australian community that non-citizens will obey Australia’s laws. Mr Sadruga asks for a second chance, but the community would consider he has been given numerous chances to live a law-abiding life. The community’s tolerance of his conduct has been eroded with every criminal offence and each occasion of immigration misconduct. This factor weighs strongly in favour of refusing to grant Mr Sadruga’s visa application. 75. I acknowledge the principle set out at paragraph 6.3(5) of the Direction that ‘ 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 .’ However, Mr Sadruga has lived unlawfully in Australia without a valid visa for approximately 14 years. His criminal conduct and immigration misconduct has been sustained and serious. In these circumstances the Australian community would expect the Minister to refuse to grant him a visa. This primary consideration weighs strongly in favour of refusing to grant his visa application . OTHER CONSIDERATIONS International non-refoulement obligations 76. The Direction refers to Australia’s non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm. [56] I find that the concerns currently expressed by Mr Sadruga do not constitute a risk of significant harm enlivening Australia’s non-refoulement obligations. It follows that this consideration does not weigh in favour of or against the refusal of his visa application. Impact on family members 77. Paragraph 12.2(1) of the Direction requires consideration of the: Impact of visa refusal on 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. 78. Mr Sadruga stated in written submissions before the Tribunal: I have lived here collectively for more than 24 years and even more than half my life and I have established my connection well in the Australian community since I have called myself an Australian by spirit but lack the legality of it. The connections include my work colleagues in various jobs that I had in the past 20 years, church, school and the business community since I joined a world wide e-business on multi level marketing in promoting Health Suppliments (sic) here and abroad… 79. Mr Sadruga submitted that weight should be placed on a letter purportedly from his former partner, in which she states ‘ no other man will love and want to support our three daughters like their own biological father .’ [57] The letter goes on to say that Mr Sadruga’s former partner supports him being granted a visa, because she will: …need his help in providing for and supporting our three daughters…I would be happy that we arrange for shared custody so that Pita can always have a fatherly input…and for that he needs to live and work in Australia. Please allow Pita to stay in Australia for the sake of our daughters and his other relationship with his own family and his father. 80. The Tribunal notes, however, that the letter Mr Sadruga says was authored by his former partner is unsigned and of uncertain origin. Mr Sadruga claims it was sent to him by his former partner via email and he then forwarded it to the VACCU on or about 6 June 2018. The only other correspondence from Mr Sadruga’s former partner before the Tribunal is dated February 2013 and is entirely at odds with the sentiments expressed in the 2018 letter. The February 2013 letter relates to withdrawal of partner visa sponsorship and states: [58] I have been married to my husband for over a decade and to be honest he has given me nothing but head ache. He has never supported me and our children…I pay for everything ranging from food, clothes, house rent end even to school fees. The only person that helps in making ends meet for me is my dad and is the person my husband always wants to chase away from the house. I have been abused physically, verbally and emotionally. At times he threatens me saying that if I try to leave him I would perish with my family. This is gone to the extent of his taking the kids away from me without my consent… He defies the court when he was given the A.V.O. then he came to me begging me to withdraw the A.V.O order which I did out of the goodness of my heart and also on his promise that he will change which he didn’t live up to. You can contact the Domestic violence court to give you more information and to testify to the abuse and difficulties that I’m going through. These are just of the few numerous of things which I have to put up with… Despises (sic) the many attempts I have tried and the uncountable chances I have given him to change his ways and attitude has all been in vain. Therefore I have come to the realisation that it is not working out and I wouldn’t want to go along with this because who knows what worse awaits me when he gets his papers done and certainly I wouldn’t want to be on the receiving end of it when that day come, for anybody can guess what he is capable of then, when he is capable of doing all these now. And I certainly wouldn’t want to wait again for another decade to try and make him change. … 81. The inconsistency between these two documents is stark. While the views of Mr Sadruga’s former partner may have changed over time, that cannot be discerned from an unsigned letter of uncertain origin. She did not attend the hearing and her evidence could not be confirmed through cross-examination. In response to a request from the Tribunal, Mr Sadruga agreed to provide the Tribunal with a copy of the 2018 email from his former partner with the attached letter. He had not done so by the date these reasons were published. The Tribunal also asked Mr Sadruga for a contact telephone number for his former partner, which he provided. Approximately a dozen attempts were made to contact his former partner on the number provided in the days after the hearing without success. There was no option to leave a message when these calls were made. The Tribunal is unable to resolve the inconsistencies between the two pieces of correspondence and is unable to place any weight on the 2018 letter purportedly authored by Mr Sadruga’s former partner. 82. Mr Sadruga undoubtedly enjoys much support in Australia from members of his family and others. He claims to have 59 family members in Australia who are all Australian citizens. I have noted and considered the statements from his father, brother, uncle, brother-in-law, nephews, cousins, other members of his extended family, members of religious congregations he has worshipped at, a former work colleague, and a former employer. It is to his credit that those who have chosen to write supportive statements view him in such a positive light. For the reasons previously adduced, however, no weight can be placed on the unsigned letters lodged with the Tribunal and little weight can be placed on those letters that are general in nature or do not reflect full knowledge of Mr Sadruga’s criminal offending and immigration misconduct. 83. Mr Sadruga submitted that his father has suffered serious health issues in recent years. His father lives close to Mr Sadruga’s younger brother in Melbourne. There is no corroborating evidence before me in relation to any disability suffered by Mr Sadruga’s father or his care needs. Having previously resided in Sydney prior to his immigration detention and imprisonment, Mr Sadruga’s evidence is of periodic visits to his father in Melbourne. There is no evidence before me that any care requirements currently in place for Mr Sadruga’s father are in any way deficient or reliant on Mr Sadruga’s contribution. There is also no evidence that Mr Sadruga’s father or other relatives would be unable to visit him in Fiji if he was returned there. It is clear, however, that members of Mr Sadruga’s family will be saddened and disappointed by a decision to refuse his visa application. 84. On balance and in light of the fact that Mr Sadruga has lived in Australia since 1996 and has many close family members who reside here, I accept that the impact on family members weighs somewhat in favour of approving Mr Sadruga’s visa application. Impact on victims 85. No victim statements were tendered at the hearing and no victims gave oral evidence. It follows that this consideration does not weigh in favour of or against the refusal of Mr Sadruga’s visa application . Impact on Australian business interests 86. Paragraph 12.4(1) of the Direction requires consideration of the: Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia. 87. Mr Sadruga stated in his submissions that if allowed to remain in Australia, his work as a sales consultant for Four Season Gutter Protection and in respect of his ‘ multi-level marketing company… promoting health suppliments ’ (sic), would enable him to create jobs. [59] He also contended that he is a ‘ Director ’ of Usana Health Services with ‘ 500 people in [his] organisation ’ and he intends to ‘ built (sic) up this business again because it helps people with their health and also wealth .’ He stated in written submissions to the Department in 2016 that both companies trade in Australia, New Zealand, China and the United States, and that a substantive visa would enable him to market these products abroad, thereby creating jobs in Australia. 88. There is no evidence before me that Australian business interests would be affected by a decision to refuse Mr Sadruga’s visa application as he contends. I therefore find that this consideration does not weigh in favour of or against the refusal of Mr Sadruga’s visa application. Other considerations – extent of impediments if removed 89. The Direction does not limit the number of other considerations that can be taken into account. Given the specific circumstances of this case, I consider that the impediments Mr Sadruga may face if returned to Fiji are worthy of consideration in exercising the discretion granted under section 501(1) of the Act. 90. Mr Sadruga was born in Fiji and lived there until the age of 19. He also lived in Fiji for four years after being deported from Australia in 1992. He stated that he is no longer a young man at 47 and, if returned to Fiji, there is a risk he ‘ will not be in a position to maintain basic living standards… [because]… there is no family or friends to support me .’ [60] He claimed it would be very difficult for him to find a job in Fiji and he would become homeless if returned. [61] He also claimed that ‘ no medical or economic support [is available] from the Fijian government .’ [62] Mr Sadruga’s evidence during the hearing is that he speaks Fijian and has a brother and extended family on his father’s side in Fiji. Although I accept Mr Sadruga’s submission that his brother and extended relatives have other priorities, it may be that they can assist his transition to life in Fiji if he is returned. 91. Mr Sadruga is comparatively well-educated. He completed year 12 and the first year of a science degree in Fiji. While living there in 1996 he planned to establish an export company and travelled to Australia for business purposes. He also claims to have completed two years of a four-year Diploma in Civil Engineering in Australia during 2008-09. His evidence reflects substantial work experience in Australia as a light and heavy vehicle truck driver, warehouse manager, salesman, and consultant. Although I accept that Mr Sadruga has close ties to the Australian community, the skills, knowledge and experience he has gained while employed in Australia since 1996 may considerably assist his transition to and employability if returned to Fiji. 92. The Tribunal notes the DFAT Country Information Report for Fiji dated 27 September 2017, including the reference to Fiji’s official unemployment rate of approximately 6.2 per cent, which is comparable to Australia’s at approximately 5.3 per cent. [63] The DFAT report notes that the Fijian Government ‘ provides generous public health services, including free primary and secondary health care .’ [64] There is no evidence before me that Mr Sadruga would be unable to secure work or access health services if returned to Fiji as he contends. 93. On balance, however, in light of the fact that Mr Sadruga has lived and worked in Australia since 1996, albeit for some 14 years on an illegal basis, I accept there is likely to be hardship associated with his transition if returned. In that eventuality, he would be entitled to the same social and welfare protections as other Fijian citizens. I nevertheless find that this consideration weighs somewhat in favour of approving Mr Sadruga’s visa application. conclusion 94. Mr Sadruga does not pass the character test. His history of violent criminal offending over two decades and prolonged immigration misconduct weighs heavily against him. The Tribunal also remains concerned by Mr Sadruga’s attempts to diminish the gravity of his conduct and incomplete rehabilitation. The specific circumstances of his case support a conclusion that his risk of re-offending is both real and unacceptable. The expectation of the Australian community is that his visa application should be refused. 95. After considering the discretion granted under section 501(1) of the Act, and applying the considerations in Part B of the Direction to the circumstances of his case, the Tribunal concludes that the two primary considerations of Protection of the Australian Community and Expectations of the Australian community

DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

[sgd]……………………………………………….
Associate

Dated: 14 January 2019

Date of hearing:	7 January 2019
Applicant:	In person
Advocate for the Respondent:	Ms Rachel Noronha
Solicitors for the Respondent:	Clayton Utz

Attachment 1: Australian National Police Certificate

Attachment 2: Fijian Police Clearance Certificate

[1] Exhibit R1, 20-21.

[2] Exhibit R1.

[3] Exhibit R2.

[4] Exhibit R3, DFAT Country Information Report, Fiji (27 September 2017) < Exhibit A1.

[6] Exhibit R4.

[7] Exhibit R1, 104; RSFIC, Annex C.

[8] RSFIC, Annex D.

[9] Ibid, Annex A.

[10] Ibid, 2.

[11] Ibid, Annex E.

[12] Ibid, Annex F.

[13] Ibid, Annex G.

[14] Ibid, Annex H.

[15] Ibid, Annex I.

[16] Ibid, Annex J.

[17] Ibid, Annex L, 4 [18].

[18] Exhibit R1, 105-137.

[19] RSFIC, Annex A.

[20] Ibid.

[21] Exhibit R1, 326-327; RSFIC Annex L, 4 [18].

[22] RSFIC, Annex K.

[23] Ibid, Annex L.

[24] Sadruga v Minister for Immigration and Anor [2017] FCCA 411.

[25] Exhibit R1, 266-269.

[26] Ibid, 20-21.

[27] Ibid, 272.

[28] Following an appeal against the severity of this sentence, Mr Sadruga’s National Police Certificate discloses that on 26 June 2017, the non-parole period was reduced from nine months to six months.

[29] RSFIC, Annexure D.

[30] Sadruga v Minister for Immigration & Anor [2017] FCCA 411, [28]-[29].

[31] ASFIC, 8 [38.c.].

[32] Attachment to ASFIC.

[33] Mr Ratabua’s statement is at Exhibit R1, 212-213.

[34] Exhibit R1, 211.

[35] Ibid, 238-246.

[36] Ibid, 214; 218; 219; 230; 232; 234.

[37] Ibid, 227-228; 231.

[38] Ibid, 232.

[39] Ibid, 229.

[40] The Federal Court has reinforced the importance of adhering to the two-step process mandated by section 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 (Kiefel and Bennett JJ).

[41] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.

[42] [2011] FCA 1303; 124 ALD 68.

[43] Lodged with the Tribunal on 2 January 2019.

[44] ASFIC, 5 [23].

[45] Exhibit R1, 97 [12]-[25]. Transcript of proceedings in the Fairfield Local Court 6 April 2017 in the matter of 2015/00211203 – R v Pita Ratabua (Transcript), 34 [45].

[46] [2017] AATA 2385 at [45].

[47] ASFIC, 6 [29].

[48] RSFIC, Annex F, 6.

[49] Ibid, Annex G, 2; Annex I.

[50] ASFIC, 6 [27].

[51] Ibid, 9 [46].

[52] Ibid.

[53] Ibid, Letter from Grant Thorp, BaptistCare dated 11 December 2018.

[54] Ibid.

[55] Ibid, 10 [49].

[56] Direction, para 12.1(1).

[57] Exhibit R1, 233.

[58] Ibid, 326-327.

[59] Mr Sadruga states the name of the company is Usana Health Services, which appears to be a publicly-listed United States company that develops, manufactures and sells nutritional and personal care products. See, for example ASFIC, 16 [86.c.].

[61] Ibid, 11 [62].

[62] Ibid, 15 [86.].

[63] Exhibit R3, 8 [2.30].

[64] Ibid, 6 [2.24].