Siale and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

Siale and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 5035 (29 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3717
Re:Liaina Siale
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:A G Melick AO SC, Deputy President
Date of Decision: 29 July 2022
Date of Written Reasons: 12 September 2022
Place:Hobart

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 May 2022, and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

....................[sgd]....................................................
A G Melick AO SC, Deputy President
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
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
A G Melick AO SC, Deputy President
12 September 2022
INTRODUCTION AND BACKGROUND

The Applicant is 26 years old and a citizen of New Zealand. He arrived in Australia in 1999 aged three, with his family.[1] Movement records show that he left Australia in 2009 for approximately three weeks.[2] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa which is the subject visa of this application for review.
[1] G-documents, 35.
[2] Ibid.
On 12 March 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full-time custodial sentence.[3] The Applicant was notified on 24 August 2020. On 21 September 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4]
[3] G-documents, 36-43.
[4] G-documents, 100-101.
On 6 May 2022 the Respondent decided not to revoke the cancellation.[5]
[5] G-documents, 7.
The Applicant subsequently lodged an application for review in this Tribunal on 9 May 2022.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] G-documents, 1-6.
A hearing was held in this matter on 7 July 2022 and 11 July 2022 by Microsoft Teams. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on 29 July 2022, the 84^th day relevant to this matter. In doing so, the Tribunal met the requirements of s 500(6L) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Khalil), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84-day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
EVIDENCE
The Applicant lodged a statement dated 8 June 2022 which was tendered in evidence.[7] A further three statements dated 21 September 2020, 2 October 2020 and 7 December 2020 were tendered as part of the G-documents.[8] The Applicant also gave oral evidence at the hearing in support of his application.
[7] Exhibit 3.
[8] Exhibit 4.
The Applicant was asked about the circumstances of his offending and his reasons for offending. He explained that prior to his offending, he had been in a four-to-five-year relationship with his ex-partner that had recently ended. He had travelled to Sydney to visit his cousins for the first time, and it was the first time he had been in Sydney. He explained that he was intoxicated, and “one thing led to another”.
He explained that he had learnt from the experience not to “suppress emotions, and to find comfort in his immediate family members”, rather than alcohol.
The Applicant was on bail from May 2018 and November 2019, and during this period he complied with all conditions and worked three jobs, two simultaneously. He said he was able to find “self-strength and reflection”, he was able to “get things done”, and realise a degree of independent living despite the surrounding circumstances.
The Applicant understood the conditions of his bail and the consequences of reoffending. He knew where his co-offenders lived and explained that, pursuant to his bail conditions, he could not and would not have contact with his co-offenders. He explained that he would be seeking immediate transfer back to Brisbane to live with his father if released into the Australian community.
While in prison, the Applicant gave evidence that he sought to improve himself by completing various online programmes available to him.
The Applicant has the support of his family should he be released. He explained his brother-in-law could provide him with work and his sister could offer him accommodation.
The Applicant explained that he is seeking to reconnect with his son, Child H. He explained that he intends to get his life back on track, have financial security and then apply for partial custody.
During cross-examination the Applicant was asked about his arrival in Australia and his extended family. He explained that he arrived as part of a family of seven but is now part of a family of nine, including two half-brothers to his father’s new partner.
When he arrived in Australia, the Applicant explained that he lived in Brisbane with his aunt. When his parents separated, he initially lived with his father. In 2012 or early 2013, the Applicant moved to Melbourne to live with his mother. He then moved back to Brisbane so that he could live with his ex-partner.
The Applicant explained that the only time he left Australia was in 2009 for a family holiday to Samoa for his grandmother's birthday. He was away for approximately three-to-four weeks.
The Respondent’s representative asked the Applicant about his history of using drugs and alcohol. He explained that he first started drinking alcohol when he was 15 or 16 years old and described it as “a fair bit” for a 15 or 16 year old, particularly within Polynesian culture, where it can be “very toxic” to be drinking heavy amounts of alcohol without knowing the limits. He gave evidence that it was mostly on weekends that he consumed alcohol.
The Applicant also gave evidence that around the same time he began to use cannabis. He did not describe his use as regular and noted that “it was just something that us kids did back then, a form of recreational use, something we just thought was cool”. He described the period he was using cannabis as “very brief” because “it wasn’t for [him]”. The Applicant also started using “ice” when he was 19 until the age of about 22. He confirmed that he did not use any other illicit drugs.
The Applicant explained that he started using alcohol when he was young because of the hostile culture at home, stemming from his parents’ divorce and the experience of his world, including his experience at school. He described “a feeling that everything was disappearing in front of me, too quick, too sudden, and I couldn’t grip it”. When asked about why he began to use “ice”, he explained that it was a way for him to cope with his relationship troubles. He was unable to recall the amounts that he was consuming, but his use increased after he ended his relationship in late 2017.
Offending
The Applicant explained the circumstances of his offending. He expressed an interest in tagging along to help his cousins “recover a debt”, which led to his incarceration. He explained that he travelled by car to the victims’ house and stood outside. He gave evidence that he was told to hold a number of items inside, and also tried to take a bottle of “Johnny whiskey” before getting into a car and leaving. He did not recall either of his cousins holding a real or fake gun.
He was aware of the facts alleged but did not have first-hand knowledge of what happened inside the house and gave evidence that he did not enter far into the house. He explained that he had an interaction with one of the victims who attempted to leave, by telling him to sit down on the couch. He did not recall telling the victim to take the car.
He accepted that he swung the bottle of whiskey near the face of one of the victims but maintained that he did not intend to hit her. He gave evidence that he was not trying to be intimidating but rather he was using the bottle to direct another victim to sit on the couch. He explained that he had the laptop under one arm and the bottle of whiskey in the other and used the arm with the whiskey to direct the victim to the couch. The Applicant agreed that he took two dogs, two laptops, a wallet, some cash and a car.
He explained that he was trying to: “be something that [he] wasn’t, trying to show them that [he] was tough, trying to be something that [he is] purely not”. He described himself as being “fairly intoxicated” and had the residual effects of ice present in his system. He conceded that he had been a willing offender at the time of his offending.
The Applicant was also asked about his affiliations in prison. He explained that he had followed the advice of his cousin and had told the prison he was affiliated with the Rebels motorcycle gang in order to be housed nearby him. He confirmed in his evidence that although his cousins had affiliations, he had never been affiliated. It was put to the Applicant that he had sought the protection of the Rebels motorcycle gang in order to receive security. The Applicant disagreed and stated: “I don’t need physical security. I wanted to be comforted by my family at this time. I have never had any intention to be affiliated to a gang and nor do I need that”. He insisted that he intended it to be more akin to emotional security.
The Applicant gave evidence that he does not intend to have any contact with his cousin. He explained that his lifestyle and future endeavours were different and that he wanted to take a new path now that he had “matured as a man”.
The Applicant was also referred to an incident in prison that resulted in his segregation. He had been involved in a physical fight. The Applicant described the incident as a “scuffle” that lasted approximately 30 seconds. He was unable to recall the details but disagreed that he had been a “standover man” in the incident. He was unsure if any of his associates were involved in standover activity.
The Respondent’s representative also asked the Applicant about an incident where an inmate was struck. The Applicant maintained that he took the blame for hitting the victim to protect another inmate’s parole. He explained: “sometimes you think you’re doing the right thing but you’re not, of course, especially for your own individual aspirations, it’s obviously not the right thing, but I was empathising with the kid at the time and his parole was coming up”.
The Applicant was asked about his self-reported tendency to become involved in other inmates’ situations. He explained that he was “trying to be a peacemaker between other inmates”. He described himself as “someone that others could seek counsel from, before they go and do something foolish”.
Relatives
The Applicant clarified the members of his close family who had lodged statements in support of his application: he noted his dad, his sisters and his brothers. He explained that he was not in contact with his mother due to the dynamic between his mother and father being unhealthy for him. He was asked about his relationship with his siblings, and he explained that prior to his offending he had not shared himself so openly with his family for fear of looking “weak”. He explained that he is now very close to his siblings, and there was a sense of clarity in their lives and a mutual desire to speak openly.
The Applicant has a son, HS, who lives in Melbourne with his mother. The Applicant confirmed that he had never met his son. The Applicant explained that he wanted to play a father-like role in his son’s life. He had made attempts to contact his son’s mother, but these discussions had not been constructive so far. When asked about the extent of contact the Applicant was seeking, he said: “I want to have some sort of partial custody and work my way up until I have the right to have him 50:50”. He clarified that he did not believe the Applicant’s mother would not allow him to have contact in the future but noted there was a need to resolve some disputes in their relationship before she would be open to contact.
The Applicant noted other minor children that might be impacted by the Tribunal’s decision in this application. He has two nephews, aged two, and three who are the children of his sister, Ms Monikah Naseriand and brother-in-law, Mr Naseri Naseri who live in Queensland. He has met both of his nephews, one inside prison and the other outside of prison, while on bail. He spent “a lot of time” with his nephew when he was on bail. He would take him to the movies, and they would eat food together. He maintains contact with his nephews through Facetime.
The Applicant has another two nephews, aged 6 and 8, who are the children of his sister, Victoria, who did not give evidence in these proceedings. These nephews live in Melbourne, and he has met them in Melbourne when they have visited him with his father. This contact has been restricted by the impact of COVID-19 and his time in prison, but he has maintained some virtual contact. Although he is not based in Melbourne, the Applicant explained that because his son is living in Melbourne, he anticipates frequent contact with his nephews.
The Applicant also has one niece, aged 3, who is the daughter of his sister who lives in Melbourne and gave evidence in these proceedings, Ms Christina Siale. He has met his niece while on bail. The Applicant explained that throughout her whole life he had been involved in her life. The Applicant noted that because his niece’s father was not present, he had played an important role in looking after his niece. The Applicant explained that his sister now has a new partner, and they are intending to get married soon.
The Applicant also has one stepsister, and two half-brothers, aged 13, 6 and 9 respectively. These children live with his father and stepmother in Brisbane. The Applicant has spent portions of time living with his step- and half- brothers.
The Applicant agreed that he had been employed in various roles including as a pick-packer, a form roller and a steel fixer, a security guard, a barber, and in post-delivery. He also noted some casual logistical roles. While he was growing up, he also performed some volunteer work in his local church but has not continued his involvement while on bail. He intends to reconnect with a church should he be able to stay in Australia.
The Applicant has a Certificate II in hospitality, Certificate III in cleaning operations, and a Certificate I in information, digital media and technology. He explained that he had also completed qualifications in security operations, a Certificate III and IV. If the Applicant was to be released, he explained that he would be able to complete a plumbing apprenticeship with his brother-in-law in Queensland. Alternatively, if he arrives in Queensland, he could work with his cousin with a government agency. He explained that he would be able to find alternative work in a supermarket if need be. He considered work to be “very available, in the support network he has available outside”. He was unsure if he would be able to find work without the assistance of his support network.
The Applicant has had very infrequent periods of unemployment, with some reliance on government benefits when working only casually. He could recall one period when he did not work for six-months after moving interstate.
The Applicant did not expect that he would be able to find work in New Zealand. He was concerned about not knowing the country and his lack of a support network. He explained that his employment had mostly been obtained through his support network. He disagreed that he would be able to find employment in New Zealand without a support network. He confirmed he could not recall any family in New Zealand but would become involved in a church. He did not believe it would be financially feasible for his family to support him or visit him in New Zealand.
The Applicant stated that the likelihood of him committing a further offence was “very low, there is no way in my whole heart that I would be reoffending”. The Applicant cited several barriers that had prevented him from participating in the drug and alcohol rehabilitation program recommended by his psychologist. He stated that he had otherwise made use of every service available to him in prison. He explained that he had already made plans to participate in courses should he be released and referred the Tribunal to evidence demonstrating this initiative.
The Applicant has also completed a number of courses in prison, including anger management and anxiety therapy. When asked about what would prevent him from using drugs and alcohol to manage his stress in the future, the Applicant explained he was better supported and more confident in himself.
Ms Monikah Naseri, the Applicant’s sister
Ms Naseri is the Applicant’s sister. She lives with her husband, Mr Naseri in Brisbane and their two sons.
The Applicant’s sister was aware of the Applicant’s convictions and gave evidence that prior to his offending, she did not appreciate the extent or seriousness of the Applicant’s drug and alcohol use.
She explained that he was struggling with depression and that although she had tried to support him, he had not received professional support. She explained that the Applicant was now receiving support with respect to his future and that he had told her about his plans to study, to engage in counselling and seek support for his alcohol-use.

Ms Naseri explained that she had been working with their other sister to explore the resources available to assist the Applicant with rehabilitation. She described him as “driving” conversations about his future plans, and that he felt remorseful, both of which worked as factors that mitigate against a risk of further offending.
Ms Naseri discussed the importance of the Applicant’s relationship with her two sons, and how she wanted them to be able to continue to connect in person. If the Applicant were to be removed to New Zealand, Ms N said she would be “devastated”. She also discussed the impact that removal would have on the Applicant’s father.
During cross-examination, Ms Naseri indicated she was financially restricted from visiting her brother in New Zealand and would only be able to do so in critical circumstances. If he was to be removed, she would maintain contact with the Applicant via telephone.
Ms Naseri also expanded on the condition of the Applicant’s father’s health. He has ongoing back issues and has a heart condition. The Applicant’s father’s primary carer is his partner.
Mr Naseri Naseri, the Applicant’s brother-in-law
Mr Naseri is the Applicant’s brother-in-law. He has known the Applicant for over 11 years. He maintained the Applicant’s offending does not reflect his character. He was surprised by the Applicant’s actions and having known him for such a long period of time, Mr Naseri described the Applicant’s offending as “very out-of-character”.
Mr Naseri talked about the relationship the Applicant has with his nephews. Mr Naseri described them as having a “pretty big” connection. He didn’t necessarily think the Applicant had abused alcohol but acknowledged that he wasn’t very close to the situation. Despite this, he perceived the Applicant as having “come a long way” in the way that he presents himself. Mr Naseri explained that he wasn’t often in close contact with the Applicant but played more of a supportive role for his wife.
Mr Naseri is a plumber and explained that he would be able to steer the Applicant into getting work in the trade. He confirmed he would be able to do this regardless of where the Applicant was living, but it if was in Canberra with Mr Naseri, it would be “almost right away”. Later he told the Tribunal he was “100% sure” he could secure employment for the Applicant and confirmed the Applicant could become his apprentice. He also explained that he had supported his wife in being the “backbone” of their family in supporting the Applicant throughout this process.
Mr Naseri was unaware of any family in New Zealand that could support the Applicant. If he went to New Zealand, Mr Naseri explained that he would not have the finances to support his wife to visit the Applicant, nor would he be able to go there himself. He would keep in contact with the Applicant over the telephone, but he would prefer the contact to be in person.
Mr Liana Lealaitafea Siale, the Applicant’s father
The Applicant’s father knew about the Applicant’s drinking during the breakdown of his marriage with the Applicant’s mother. He gave evidence that he could see his son change during this time and maintained that he had been very close to his son in the period just prior to his offending. He described the Applicant has a “good” and “helpful” boy who had always assisted the Applicant’s father, including financially, and with his other siblings.
After the Applicant’s offending, the Applicant’s father said he was shocked and sad, explaining that the Applicant had been raised well in a good family. He had been very involved in supporting his son throughout his legal proceedings and had to borrow money to travel to see his son and participate in the court case.
The Applicant’s father had encouraged the Applicant to apologise to his victims and the Applicant’s father gave evidence that he had also apologised to the victims. The Applicant’s father explained that he had spent time with the Applicant when he was on bail. There was a period of a few months when they didn’t see each other, so he was very happy to spend time with him before his court case. He also explained that they “always talk” about family and the bible.
The Applicant’s father explained that he could see the ways in which the Applicant had changed. He expressed concern about what would happen if the Applicant was deported, and he explained he did not have the capacity to support the Applicant in New Zealand. He also was not in a position to relocate because of his employment and family connections in Australia.
During cross-examination, the Applicant’s father was asked about the Applicant’s drinking. The Applicant’s father perceived a change in his behaviour, that he started drinking more than normal around the time that he broke up with his former partner. The Applicant’s father gave evidence that he similarly used to drink a large quantity of alcohol, although he, too, no longer drinks.
The Applicant’s father explained that he had no family in New Zealand, and that this was a source of worry for him with respect to the Applicant. He could not recall the last time he visited New Zealand. The Applicant’s father agreed that he would keep in contact with the Applicant via the telephone if he needed to, but he was not thinking he would go back, because of the lack of support he would be able to provide to the Applicant.
The Applicant’s father was asked about his heart condition. He explained that he first suffered a heart attack or similar injury about five years ago. He has regular check-ups in relation to his heart and other health concerns. He explained his work made his back condition worse, but he felt he needed to keep working to support his family. During re-examination, he gave evidence that he expected the Applicant would assist him if he remained in Australia.
Ms Christina Siale, the Applicant’s sister
The Applicant’s sister prepared a statement that was tendered in evidence[9] and gave oral evidence at the hearing.
[9] Exhibit 8.
Ms Siale is a single mother with a young child. She explained that she received support from the Applicant after giving birth to her daughter at a young age, in the absence of the support of other members of her family. The Applicant was working and was providing Ms Siale with financial support for her and his niece.
At the time of the Applicant’s offending, Ms Siale gave evidence that she perceived the Applicant drinking everyday around the time of his offending. She explained that there was a culture in her family of not showing emotions. After the Applicant left for Sydney, she explained that she knew something was wrong because he failed to contact her for several days.
Ms Siale confirmed that her daughter knew the Applicant and referred to him as “Uncle LJ”. She explained that since her brother had been in detention his attitude had changed and he had been checking in on her daily. She did not believe him to be same person he was when he left Melbourne prior to his offending. Ms Siale corroborated the Applicant’s plans to move to Brisbane and start working if he was allowed to remain in Australia in order to support their father.
During cross-examination, Ms Siale was asked about her network in New Zealand. She did not know anyone in New Zealand and explained it would be difficult for her financially to visit New Zealand, and she had some trouble obtaining a passport for her daughter. She agreed that she would stay in contact with the Applicant via telephone and Facetime if he was deported. Although Ms Siale would not have the support of the Applicant in Melbourne, she explained that she too intended to relocate to Brisbane soon. During re-examination, she confirmed this would be by the end of the year. When asked if she expected the Applicant to support her in Brisbane, she answered “I will support him, and he will support me”.
LEGISLATIVE FRAMEWORK
Section 501 (3A) of the Act obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test (either because of s 501 (6) (a) in conjunction with s 501 (7) (a), (b) or (c) or because of s 501 (6) (e)) and if the person is serving a sentence of imprisonment on a full-time basis.
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that, following an invitation by the Minister for a person to make representations about the mandatory cancellation of their visa,[10]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.
[10] 501CA (3) (b).
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and, if he does not,
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 12 November 2019, the Applicant was sentenced to a term of imprisonment of five years with a non-parole period of two years and six months.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made by the Minister under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[13]
[13] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(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.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out a non-exhaustive list of four Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[15]
[14] [2018] FCA 594.
[15] Ibid, [23].
BACKGROUND and offending
On 12 November 2019, the Applicant was convicted in the District Court of New South Wales of two offences, that being Robbery in company and In company rob while armed with dangerous weapon for which he was sentenced to an aggregate term of five years’ imprisonment. On the same day, and in relation to the second robbery-related offence, the District Court took into account (as a Form 1 matter) the offence of Be carried in conveyance taken without consent of owner.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Both parties agreed that the Delegate’s summary of the sentencing judge’s comments was appropriate and accordingly I adopt the following aspects thereof:[16]
“17. In sentencing, the Judge noted the victims were confronted by four ‘large’ men which must have been ‘extremely’ frightening, and this increased the objective seriousness of the offending. In relation to the Robbery in company offence, the Judge considered that Mr SIALE initially had a limited role in terms of his contact with the female victim but he later swung a bottle of whiskey in an intimidating manner. In respect of the items stolen, his Honour was satisfied overall they were not significant and there was an intention to return the car. The Judge was satisfied that Mr SIALE’s role came as a consequence of him visiting his cousins, the co-offenders, and with respect to the female victim Mr SIALE’s role fell below the mid-range of objective seriousness. According to his Honour there was a joint criminal enterprise between the offenders in respect of both offences, and the object was to obtain money to repay a debt allegedly owed by the couple’s son
18. In relation to the joint enterprise in respect of the second offence, his Honour was satisfied that the male victim was subjected to a considerable degree of violence, being kicked to the head and body by the two offenders, noting that Mr SIALE was not a participant in the assault but nonetheless was elsewhere in the house collecting items. Mr SIALE’s involvement included telling the male victim to remain still, providing directions to the other two robbers as to the location of the dogs and advising the victim they were going to take their motor vehicle. According to the Judge, the facts demonstrated that Mr SIALE assumed some authority and was making decisions in the execution of the joint enterprise. His Honour also stated that Mr SIALE was in the company of the other two offenders who violently confronted the male victim in his home, and noted that Mr SIALE did not dissuade the gun holder in any way. Overall, the Judge was satisfied that each of the parties were equally responsible for the act of each other, and the objective seriousness of Mr SIALE’s in the commission of this offence fell towards the lower end of the mid-range for such offences.
19. When considering the aggravating factors, his Honour noted that the offences occurred in the homes of the victims where the victims were entitled to feel a degree of safety. His Honour described the offending as ‘extremely’ serious, noting it involved four large men turning up ‘unannounced’ at a person’s home in the night, with one offender brandishing a gun. His Honour also commented on the ‘significant’ threats of violence made against the victims, highlighted the assaults experienced by the male victim, and characterised the behaviour as ‘abhorrent’ to community values. His Honour imposed an aggregate sentence of five years’ imprisonment, noting that both offences occurred at the same time with the object of recovering a debt apparently owed. The sentence commenced on 16 July 2019, with a non-parole period of two years and six months and a due release date of 15 January 2022.”
[16] G-documents, 10-11.

The Applicant stated in evidence that he was holding a laptop under one arm and the whiskey bottle in the other and that the swinging of the whiskey bottle in the vicinity of the female victim occurred when was gesturing for the male victim to sit down. I accept that he was not intending to threaten the female victim, but his actions clearly caused her considerable distress.
I note that the Applicant told prison authorities that he was of member of an outlaw motorcycle gang. However, I accept his evidence to the effect that he has never been a member of such a gang but made the representation at the suggestion of his cousin, a fellow co-offender, in an effort to ensure that they were sent to the same area in goal.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I find the Applicant’s conduct to be very serious as he, with three large co-offenders, invaded the home of complete strangers, including a female victim, who were entitled to feel secure in their own residence. The Applicant was complicit in the violent conduct of his co-offenders and engaged in intimidating behaviour to facilitate what was described by the sentencing Judge as a “joint-enterprise”.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
Although the Applicant’s sentence was at the lower end of available sentencing options, its length demonstrates the very serious nature of his offending, despite the fact he was not an instigator, had no prior criminal record and took no part in the physical assault upon the male victim.
I do not consider sub-paragraphs b, e, f or g of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. In relation to sub-paragraph (d) of paragraph 8.1.1 (1), it cannot be said that the Applicant’s offending is frequent, or that any trend of increasing seriousness is disclosed on the evidence. The sub-paragraphs (a) and (c) of paragraph 8.1.1(1) of the Direction, in their totality, significantly weigh against revocation of the cancellation of the Applicant’s visa.
Findings – Nature and seriousness of conduct
I find the nature of the Applicant’s conduct to be very serious, taking into account his contribution to what was ultimately a violent joint-enterprise. This is reflected in the remarks of the sentencing Judge and the sentence imposed.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view 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 risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant was complicit in a violent robbery against two victims, one female, in the safety of their home. He acted in an intimidating manner in pursuit of a joint criminal enterprise. I note the sentencing Judge characterised the behaviour as ‘abhorrent’ to community values. I consider that should the Applicant reoffend, there would be a strong likelihood of causing serious physical and mental harm to members of the public.
Likelihood of engaging in further criminal or other serious conduct
(a) Factors contributing to past conduct
In addition to the evidence referred to above, I take into account the comments by the sentencing judge (as set out by the delegate) and the delegate who made the decision sought to be overturned:
27. In passing sentence on 12 November 2019 with respect to the two counts of robbery, the Judge was satisfied that Mr SIALE became involved in the robbery as he required money for drugs, and ‘apparently’ was under the influence of drugs at the time of the offending. According to his Honour, Mr SIALE’s personal circumstances did not excuse his behaviour, but nonetheless explained his lack of judgement.
28. When considering Mr SIALE’s subjective background, the Judge observed that Mr SIALE is one of seven children, and that his parents separated when he was aged 15. Mr SIALE’s mother had a gambling problem and there was some domestic violence within his parents relationship. Following the separation, Mr SIALE lived with his father in Brisbane and they shared a close relationship. After relocating to Melbourne, Mr SIALE resided with his mother and his former girlfriend. By the age of 15 he was consuming drugs and alcohol, and he commenced using methamphetamine after the relationship breakdown with his girlfriend and his employment became erratic. Mr SIALE suffered some depressive symptoms and attempted suicide on two occasions when he was 20, the main triggers being his relationship issues.
29. In response to the possible factors that may explain his offending, Mr SIALE states in his Personal Circumstances Form dated 16 September 2020 that he was under the influence of alcohol and methamphetamine during the time of the offending, however he takes responsibility for his actions. In his statement dated 21 September 2020, Mr SIALE provides further background and context into his offending. Mr SIALE explains he had travelled to Sydney to visit his cousins for the weekend. At the time he was spiralling back into depression after a relationship breakup and he was mentally unwell. On the night of the offending, he consumed a heavy amount of alcohol and had taken methamphetamine, both substances clouded his judgement. Mr SIALE indicates he felt compelled to join his cousin to resolve a person conflict because of his loyalty to family Attachment L.
30. In a psychologist’s report by Kris North dated 31 October 2019, Mr SIALE provided similar assertions with respect to the background of his offending. Mr SIALE told the psychologist that he travelled to Sydney to spend time with his two cousins and to ease his depression as a result of a relationship breakdown. He insists that on the day of the robbery, his cousins told him they had to sort something out and they asked him to join them. Mr SIALE states he had no idea what his cousin was planning, but he later got involved in the offence as he did not want let his cousins down. A detailed account of Mr SIALE’s substance abuse is also provided in the report, noting that Mr SIALE’s alcohol and methamphetamine use escalated after his relationship broke down. Mr SIALE described experiencing depressive symptoms in his past relationship, reporting he had considered suicide.
33. According to a Conviction, Sentences and Appeals report dated 12 March 2020, prepared by the New South Wales Department of Corrective Services, Mr SIALE was identified in reports for being part of, and having minimal involvement, in a drug and standover ring of inmates in the prison.
34. As part of his revocation request and as detailed in his Personal Circumstances Form, Mr SIALE confirms that he saw a psychologist before being incarcerated, and it was recommended he undertake a relapse prevention plan, which he intends to do. Mr SIALE envisages that factors such as his strong family network, his commitment to ongoing meaningful employment and education, will limit the risk of him reoffending.
35. In his statement dated 21 September 2020, Mr SIALE states he has taken full responsibility for his actions, he regrets what took place that night, and he understands that his poor decision-making impacted his life and all the victims including his family who ‘unfailingly’ supported him throughout the criminal proceedings. Mr SIALE prides himself for his strong Christian faith and has sought spiritual guidance from a prison chaplain. Mr SIALE considers himself to be a different person now, stating his family have noticed the positive changes in his character since his incarceration. Mr SIALE is confident that with the support of his family he will maintain his abstinence from alcohol and substances. Mr SIALE states that his family were not aware of his drug abuse and they have been nothing but supportive in ensuring he seek assistance for this issue. He recognises the importance of changing his lifestyle and staying away from negative influences. Mr SIALE promises never to reoffend and if released back into the community will seek further therapy to address his drug and alcohol abuse, including attending courses and participating in support groups to develop a better relationship with his son. Mr SIALE is aware that he can seek the assistance of Community Corrections to address his mental health and behavioural issues. Mr SIALE states he has maintained very good behaviour in custody, and had been employed in various roles, having been classified as a low risk. He volunteered with the Red Cross Foundation at Bathurst Correctional Centre and was involved in assisting newly arrived fellow inmates, creating an open circle for Pacific Islanders. He hopes to continue with such pro-active initiatives once in the community.
36. Mr SIALE explains in his statement dated 21 September 2020 that his biggest priority is to rebuild a relationship with his son, [HS], and if he has to leave Australia, this opportunity will be jeopardised. Mr SIALE also explains that his father, Liaina Lealaitafea, is distressed at the thought of him leaving Australia, and if he could remain in Australia he could support his father through difficult times, citing his father’s frail health.
37. Mr SIALE undertook various vocational and rehabilitation courses to address the risk factors associated with his offending and to improve his employment prospects, parenthood skills and emotions. The topics include work development, anger management, anxiety therapy, building self-esteem, emotional intelligence, creative thinking, business skills, resolving workplace conflict, single parenting, stress management, basic computer skills, maintaining cleaning storage, career networking and working safely. Based on an email dated 23 February 2021 from Mr SIALE’s authorised recipient (his sister), Mr SIALE has been attending psychological counselling with Froid Xavier since 3 February 2021 to address his mental health issues including depression. Froid Xavier highlighted the need of ongoing psychological support to address Mr SIALE’s issues, particularly in light of Mr SIALE’s unresolved immigration status.
38. Support letters and character references from family and close acquaintances have been produced to demonstrate the extent of Mr SIALE’s support network in Australia. According to Mr SIALE’s mother, Christina Mauigoa, her son was released on bail on 14 May 2018 and he was able to work three different jobs. Christina moved interstate from Victoria to New South Wales to keep an eye on her son and to make sure he remained on the right track. She considers her son to be a kind and humble person, who will do everything in his power to remain crime-free and who has the full support of his family. Before relocating to Fiji, Christina provided her son with positive support, however due to COVID-19 and personal finances she is unable to return to Australia to visit him. Mr SIALE’s father, Liaina Lealaitafea, considers his son to be a reliable man who helps everyone around him, and is admired by his family for his efforts. Liaina states his son has always shown respect and loyalty to his family and friends. He maintains that his son is ashamed by his offending and for the trauma experienced by his victims and Mr SIALE has requested that his apologies be conveyed to the victims. Mr SIALE’s father has observed a positive change in his son, and is committed, together with his daughters, to ensure that Mr SIALE stays on the right path.
39. Mr SIALE’s sister Monika Naseri, has observed a complete transformation undergone by Mr SIALE since his incarceration and he is like his old self again. She believes that Mr SIALE has worked hard to improve himself and to address his problems undergoing training and courses to assist him with his alcohol and drug abuse. Mr SIALE’s brother in law, Naseri Naseri, was taken aback at the news of Mr SIALE having committed offences, as he considers him not to be that type of person. Mr Naseri observed that Mr SIALE has shown remorse for his actions, and he will assist Mr SIALE once released into the Australia community, including ensuring that he attend any support groups and courses to prevent reoffending and relapse.
40. Mr SIALE’s other sister, Victoria Moors, who has been a social worker for the past 10 years, believes that the crimes committed by Mr SIALE are not a true reflection of his character and she states that Mr SIALE has conducted himself respectfully in prison. According to Victoria, her brother recognises and regrets the strain his crime has caused to so many, and she believes her brother understands his errors. She states that with the support of his family, who hold respectful positions within their professions, Mr SIALE will successfully transition back into society as a rehabilitated man with a very low risk of reoffending.. In his letter of support, Father Greg Walsh notes that Mr SIALE was an inmate at Bathurst prison since 14 March 2020, and he had spoken to him on at least two occasions, describing Mr SIALE as polite man who has expressed a keen interest in Bible studies.
I accept that the Applicant's relationship breakdown, alcohol abuse and possible underlying mental health issues were a contributing factor in the Applicant’s unlawful behaviour, but I do not consider such factors excuse such behaviour or reduce his level of responsibility.
However, I was very impressed by the evidence given and support offered by the Applicant’s family; and I consider that his term of imprisonment and immigration detention have had a salutary effect on him.
I have no doubt the Applicant is genuinely remorseful and is attempting to rehabilitate himself. Those around him have given evidence of significant positive changes in his behaviour and his outlook; and he has taken the opportunity to complete several courses whilst in custody, which will improve his employment prospects. Unfortunately, not having been present back in the community prevents him from having the chance to prove he can abstain from alcohol and drug abuse and makes it harder to determine the level of the potential risk of re-offending.
However, I am satisfied that the Applicant has made genuine attempts to rehabilitate himself and has taken significant steps indicative of genuine reform. He has a strong desire to look after his father and son which he will not be able to do if forced to leave Australia. The knowledge that any further offending, if he is allowed to remain, would most likely mean he will not be given another chance would be a very strong disincentive to reoffending.
I note that the offences occurred against the background of him having recently arrived in another city and seeking to impress his cousins with whom he seems to have had no significant prior contact. I am satisfied that he has matured significantly since offending and, absent any drug or alcohol abuse, is unlikely to be led astray in an attempt to impress those around him.
Whilst I would have preferred to have seen more attention given to addressing his alcohol and drug issues, I accept it was difficult in his custodial circumstances and I also accept that his family, including his social worker sister, not only believe he has “turned the corner” but are adamant that they will support and monitor him.
I found the Applicant to be an honest witness and I am satisfied with the explanation given by the Applicant in relation to the physical fight with another inmate whilst in prison. I do not find that he was involved as a standover man in a drug ring within the prison. I have found the Applicant’s conduct to be very serious. I have further found that should he engage in similar offending, he has the potential to cause physical and/or psychological injury and/or financial harm to members of the Australian community. However, I consider the risk of him reoffending to be low; especially as he must realise, that if allowed to remain, he is very unlikely to receive another chance should he re-offend. I also consider it very relevant that the Applicant did not re-offend whilst on bail between his arrest and conviction.
Conclusion: Primary Consideration 1
Weighing up the findings set out above, I consider the need to protect the Australian community weighs significantly against revocation of the Delegate’s decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

I find no evidence that the Applicant has engaged in conduct that constitutes family violence as defined in the Direction.
Conclusion: Primary Consideration 2
I find this consideration not applicable in this matter and it therefore weighs neutrally.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has one son under the age of 18. HS is eight years old and currently lives with his mother in Melbourne. The Applicant does not initially intend to live with or near his son but indicated that in the event he can remain in Australia, he will seek a co-parenting arrangement. The Applicant also completed a three-hour course in single parenting this year to improve his parenting skills.
In his statement and evidence, the Applicant frankly admitted that to date he has had little interaction with his son, because of the difficult relationship with his son's mother and the fact that he considered himself not fit to be around his son whilst he was abusing drugs.
I accept the Applicant wants to be a part of his son’s life, and the barriers he may face in doing so should he be removed from Australia. I accept that he also believes it would have a very negative effect on his son’s upbringing should the son be deprived of a father.
I was impressed by the evidence given by the Applicant’s father, and accept that he continues to work despite health problems to assist with the upbringing of his extended family. He hopes his son is allowed to remain so that he can assist in providing financial support. The Applicant’s father is also concerned about the absence of an appropriate father figure for his grandson.
I was very impressed with the evidence given by the Applicant’s sister, Ms Siale. I found her to be truthful and passionate about her desire not only to assist the Applicant but also to have him remain in Australia to continue the support he has given her and her young child, the Applicant’s three-year-old niece. The Applicant had supported her financially in the past. Her daughter knows the Applicant as ‘Uncle LJ’ and the Applicant has been contacting them daily since being in custody. Although his sister seems to have found a new partner, I am satisfied that the Applicant, if allowed to remain, will continue to provide significant support to his niece.
The Applicant also has other relatives under the age of 18 in Australia with whom he has significant contact. These relatives include four nephews aged eight, six, three and two, a step-sister aged 13, and two half-brothers aged nine and six.
I note that the Applicant has assisted with the upbringing of many of his minor relatives over the years including assisting them with their homework, driving them to and from school, providing financial assistance, and generally assisting with their safety and supervision. He has been in regular contact with them since being in custody and I accept, that despite them being aware of his offences, they have been distressed by his absence and there is a genuine and loving relationship between them and the Applicant.
I find the Applicant’s relationship with his three-year-old niece to be very strong in spite of her young age, and I also consider it desirable that he have the opportunity to be a father to his son.
Conclusion: Primary Consideration 3
I place significant weight upon this consideration in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[17]
[17] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, I take into account the above considerations and note, in the applicability of paragraph 8.4(2)(c), that the Applicant has engaged in conduct that can be described as a serious crime against a woman. I find that he raises serious character concerns and the community expectation described above applies in this case.
Conclusion: Primary Consideration 4
Despite the fact that I consider the risk of the Applicant reoffending as low, applying the principles outlined above, I place significant weight upon this consideration against the revocation of the cancellation the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
Accordingly, this consideration weighs neutrally.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
When considering the extent of any impediments that will be faced by the Applicant if removed to New Zealand I have taken into account the following matters.
He is 26 years old and arrived in Australia in March 1999 as a three-year-old. The only time he has left Australia was for a brief period in 2009 and he has no close relatives or associates in New Zealand.
He is generally healthy, although I accept he has suffered, on occasions, from depression although there does not appear to be any supporting psychiatric diagnosis. I accept that such a condition would be exacerbated if removed from his family and support elements.
Although the Applicant has significant concerns about being removed to a country in which he has no contacts or friends, New Zealand shares a common culture and language with Australia and has similar social security and support organizations.
The Applicant has worked consistently in Australia in a variety of roles and has several qualifications, including a TAFE certificate IV in Security Operations, although that qualification may not be recognized in New Zealand. He has a good employment record and I consider he should not face difficulty in obtaining employment in New Zealand. His conviction may mitigate against him being employed in the security industry in either Australia or New Zealand.
I accept that he will be socially isolated for a period of time; and that he will require time to become socially adjusted. He will also suffer emotional hardship if separated from his family, with little chance of being able to play any part in his son’s life.
I recognize that he will be able to keep in touch with his family in the same way he has been able to so do whilst in custody, but not being physically present in Australia will have a severe impact on his ability to form any relationship with his son.
Balancing the above considerations, I place moderate weight upon this consideration in favour of revoking the cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available; and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has significant and strong ties to Australia, having lived here for 23 years after arriving at the age of three. He has only been out of the country for a very short time in 2009 and has extensive immediate family in this country including his son, father, stepmother and, including step and half-siblings, eleven siblings.
He also has numerous aunts, nieces, nephews, cousins and in-laws many of whom he has assisted prior to being incarcerated.
Most of his relatives are Australian citizens or in the process of attaining citizenship.
His father is struggling to support his five children because of significant medical issues including heart problems, back pain and issues with his upper limbs. These issues prevented his father from working between 2018 and 2020 and he very much needs the Applicant to assist him. The Applicant intends living with, or close to his father if allowed to remain in Australia.
The evidence given by family members and letters of support provided to the Delegate indicate a very strong relationship between the Applicant and his extended family, as well as demonstrating community contributions. In the past, the Applicant attended church activities on a monthly basis, including packing groceries for families in need, assisting the elderly and maintaining church grounds.
He was educated at both primary and secondary levels in Brisbane, where he intends to return to live with his father if allowed to remain. He was an excellent rugby league player, having played in representative teams until he was 18, whereupon he focused on work in a variety of roles.
In summary, I find the Applicant has significant ties to the Australian community, a community to which he has made not insignificant contributions and a community which may therefore afford a higher level of tolerance to his criminal activities.
Although his family may maintain contact with him and New Zealand via electronic means, I am satisfied that their financial position would not allow them to visit him for any significant periods or number of times. I also consider that contact via electronic means is a poor substitute for the in-person relationship the Applicant could enjoy with his family if he were to remain in Australia. I accept that both the Applicant and his extended family would suffer significant emotional hardship should he not retain his visa.
Findings – Strength, nature and duration of ties to Australia
Overall, I place significant weight upon this consideration in favour of the Applicant retaining his visa.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: moderate;
(c)impact on victims: neutral; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia; significant, and the impact on Australian business interests: neutral.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction;
(a)Primary consideration 1: significant weight against the revocation of the cancellation of the Applicant’s visa;
(b)Primary consideration 2: not applicable;
(c)Primary consideration 3: significant weight in favour of the revocation of the cancellation of the Applicant’s visa;
(d)Primary consideration 4: significant weight against the revocation of the cancellation of the Applicant’s visa; and
(e)Other Considerations
(i)international non-refoulement obligations: neutral;
(ii)extent of impediments if removed: moderate;
(iii)impact on victims: neutral; and
(iv)links to the Australian community including the strength, nature, and duration of ties to Australia; significant, and the impact on Australian business interests: neutral.
I consider this matter to be finely balanced but the Applicant’s good record, apart from the incident which led to his conviction, his close relationship with, and support for and from, his extended family, the interests of minor children and his community contributions just outweigh the weighting of Primary Considerations 1 and 4.
Application of the Direction therefore favours the revocation of the cancellation of the Applicant’s visa.
Consequently, I exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 May 2022 and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 158 (one-hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

.........................[sgd]..............................................
Associate
Dated: 12 September 2022

Date of hearing: 7 & 11 July 2022

Solicitor for the Applicant:

Mr Fardin Nikjoo

Nikjoo Lawyers

Solicitor for the Respondent
Ms Grace Ng

Australian Government Solicitor

Annexure A – List of Exhibits
Exhibit 1: Respondent’s Tender Bundle
Exhibit 2: ‘G’-Documents
Exhibit 3: Statement of the Applicant dated 8 June 2022
Exhibit 4: Letter from Health Western Sydney Local Health District dated 24 June 2020, documents from the International Health and Medical Services, letter from Elizabeth Murells, community counsellor, and letter from Assure Programs dated 9 June 2022
Exhibit 5: Statement of Ms Monikah Naseri
Exhibit 6: Further undated statement of Ms Monikah Naseri
Exhibit 8: Undated statement of Ms Christina Siale Lealaitafea
Exhibit 9: Undated statement of Alosina Lealaitafea Siale
Exhibit 10: Undated statement of Ana Stowers
Exhibit 11: Statement of Storm Fa’agase dated 22 May 2022
Exhibit 12: Statement of Reverend Michael Wells dated 8 November 2021
Exhibit 13: Undated statement of Alice Watkins
Exhibit 14: Statement of D Spiros dated 22 May 2022
Exhibit 15: Statement of Deane Lawler dated 16 May 2022
Exhibit 16: Statement of Tania Lauricella dated 9 June 2022
Annexure B – Short-form Decision
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/3717

General Division )
Re: Liaina Siale
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              A G Melick AO SC, Deputy President
DATE:   29 July 2022
PLACE:                    Hobart
DECSION: Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 6 May 2022 and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

.............[sgd].............................
Deputy President

[2022] AATA 5035

29 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/3717
General Division	)