Sione and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2024] AATA 2701

Sione and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 2701 (1 August 2024)
Division:GENERAL DIVISION
File Number: 2024/3141
Re:Mark Sione
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Member
Date:1 August 2024
Place:Melbourne

The Tribunal affirms the decision of the delegate of the Respondent Minister dated 9 May 2024 not to revoke the mandatory cancellation of his Class BC (Subclass 100) Partner visa.
.................[sgd].......................................................
Dr Stewart Fenwick, Member
Catchwords
MIGRATION – mandatory cancellation of visa – national of Samoa – Class BC (Subclass 100) Partner visa – failure to pass character test – multiple convictions for offences of violence – multiple convictions for family violence – diverse other offending – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – ties to Australia and best interests of minor children considered – decision
affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99
CKL21 v Minister for Home Affairs [2022] FCAFC 70
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] HCA 2
Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Member
1 August 2024
BACKGROUND

Mr Sione lodged an application on 17 May 2024 for review of a decision of a delegate of the Respondent Minister dated 9 May 2024 not to revoke the mandatory cancellation of the Applicant’s Class BC (Subclass 100) Partner visa on character grounds.
Mr Sione is a 38-year-old gentleman who was born in Samoa and lived there until moving to Australia in 2015, at the age of twenty-nine. The Applicant has two children with his former wife. He received multiple criminal convictions between 2019 and 2023, and was incarcerated in mid-2021 where he remained until moving into immigration detention.
The Applicant’s visa was cancelled as a result of a sentence of imprisonment of 20 months received for an armed robbery, along with a number of other offences. Mr Sione also has other convictions for violence and contraventions of family violence orders.
Mr Sione represented himself before the Tribunal. He lodged one written reference from a Samoan relative now resident in Australia, Mr Erika Utumapu, dated 14 July 2024 (Exhibit A1). The Respondent lodged documents pursuant to s 500(6F) of the Migration Act 1958 (Cth) (the Act) (G) and Supplementary G documents consisting of material lodged under summons (SG).
Information lodged by Mr Sione in his request to revoke the mandatory cancellation of his visa (G11, 89) indicates that he had at that time provided supporting documents from the church, his community, family and friends, as well as photographs of the Applicant with his children. This supporting material was not in the G documents and is not itemised in the index of material attached to the decision under review (G2/2, 9).
On 17 July 2024, at a telephone directions hearing, neither party was able to shed light on its whereabouts, and I sought at this time to ensure Mr Sione was aware of the need to arrange for the lodging of any supporting material (only Exhibit A1 was provided). Mr Sione also indicated that he had experienced challenges in preparing for the hearing, stating that he thought his phone had been hacked and this was where he had compiled material in preparation for the hearing.
Jurisdiction
Mr Sione’s application takes the form of an email sent to a Tribunal email address on 17 May 2024. In this email he states, relevantly:
‘… I just lodged my application to appeal the decision on my visa class BC subclass 100 cancellation. At the end of the application was a payment sheet, but the lady was on the phone while I was lodging the application said to me, to stop there because she has to transfer the whole application to the other form where there’s no payment …’.
The gist of the message appears to be that Mr Sione had attempted to make an online application and sought assistance in respect of fee payment. The adequacy of the application was discussed at a case management directions hearings by telephone on 29 May 2024 and, at the suggestion of the Respondent, I also issued a Direction to Mr Sione to lodge a fresh application, in case of jurisdictional error. No further ‘formal’ application was lodged.
No further evidence was obtained about the circumstances of lodgement, and I note that – ordinarily – matters of this type attract a filing fee, and I understand that no fee was provided. I also note that the administrative practice at the Tribunal in matters of this kind is to communicate directly with the relevant agency to obtain a package including the decision under review and material relied upon in making that decision.
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides as follows:
Section 29: Manner of applying for review
(1)An application to the Tribunal for a review of a decision:
a.must be made:
i.in writing; or
ii.if the decision is reviewable in the Social Services and Child Support Division--in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and
b.must be accompanied by any prescribed fee; and
c.unless paragraph (ca) or (cb) applies or the application was oral must contain a statement of the reasons for the application; and
d.if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A) shall be lodged with the Tribunal within the prescribed time.
This provision was considered in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13, a case arising in the same legislative framework of mandatary visa cancellation. In short, the High Court found that:
(a)the combined effect of s 29 and s 69 of the AAT Act is that an application that is not accompanied by a prescribed fee can be a valid application [18]; and
(b)an application in this context lacking a statement of reasons for the application is not invalid, because such a reading of the legislation would be ‘arbitrary’ and ‘capricious’ and is inconsistent with the overarching objective of the Tribunal as expressed in s 2A of the AAT Act [37]-[38].
While the Respondent did not make a formal submission as to jurisdiction, I am satisfied that Mr Sione’s application should be considered valid, notwithstanding the technical shortcomings, being failure to pay a fee, the absence of a statement of reasons for his application, and provision of a copy of the decision under review.
LEGISLATION
Mandatory cancellation of a visa on character grounds arises under s 501(3A) of the Act and occurs in circumstances where the Minister is satisfied that a person has a substantial criminal record and is serving a sentence of imprisonment. A substantial criminal record may be constituted, as in Mr Sione’s case, by a person being sentenced to a term of imprisonment of 12 months or more (ss 501(6A) and 501(7)(c)). When these conditions are met, a person is deemed to fail the character test.
A person may seek to have the mandatory cancellation revoked under s 501CA of the Act. Revocation may occur if the Minister is satisfied that the person passes the character test, or ‘there is another reason why the original decision should be revoked’ (s 501CA(4)). Direction No. 110 has been issued under the Act (the Direction) and provides guidance to a decision-maker when determining whether another reason exists on which to base revocation of the mandatory cancellation.
I will set out my reasons below structured around the relevant primary and other considerations, but I note that the Direction also sets out numerous principles at paragraph 5.2 which are to inform my consideration:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
It follows from the statutory framework above that there are two issues to address. First, I am satisfied that Mr Sione has a substantial criminal record. This arises, as indicated above, from the fact of his conviction on 20 November 2023 to a term of imprisonment of twenty months (G3, 27).
The second issue I must now consider is whether there is another reason the mandatory cancellation of the Applicant’s visa should be revoked. I note that I am not confined solely to the factors set out in the Direction.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
Mr Sione’s offending history can be briefly summarised as follows (G3, 27):
(a)Violence – convicted in 2019 for recklessly cause injury, in 2022 for unlawful assault, common law assault, false imprisonment, and aggravated burglary person present, and in 2023 for armed robbery;
(b)Family violence – a without conviction finding in 2019 for contravene family violence intervention order, and convictions in 2021 for contravene family violence intervention order (2 charges), and for contravene family violence safety notice;
(c)Dishonesty and property – convicted in 2020 for go equipped to steal/cheat and theft from motor vehicle, in 2021 for intentionally damage property, fraudulently use registration label, theft of motor vehicle, and dishonestly assist in retention of stolen goods, in 2022 for theft, and in 2023 for theft of motor vehicle; and
(d)Breach offences – convicted in 2021 for contravene a conduct condition of bail and fail to answer bail, and in 2022 and 2023 for commit indictable offence whilst on bail.
I understand from evidence provided at the hearing and through interpretation of Mr Sione’s offending record (G3/A) that he was first held in custody in mid-2021, and the effect of multiple sentences of imprisonment was that he was not again released into the community. The Applicant has received two aggregate sentences of imprisonment (60 days and 201 days) and the sentence in 2023 which led to mandatory visa cancellation, being 20 months’ imprisonment (with an additional 7 days concurrent).
In addition to the sentence of imprisonment in 2023, Mr Sione was sentenced to a community corrections order (CCO) for 15 months to commence immediately upon the completion of his term of imprisonment. This has not commenced due to his being taken into immigration detention. Mr Sione has received other lesser penalties including a series of fines including, as noted, his first offence of family violence which was also resolved without conviction.
I summarise from the judge’s remarks upon sentencing in the County Court in November 2023 in respect of multiple charges from an incident in mid-2021 (G4/B):
(a)the Applicant and a co-accused lured the victim to a location where he was set upon by Mr Sione who was carrying a knife and demanded the victim’s wallet [47];
(b)the Applicant conducted a relatively sustained assault on the victim including dragging him from his car, punching and causing injury to the victim [11], [12], [48];
(c)in a victim impact statement, the victim spoke of how the emotional and psychological effect of the attack affected facets of daily life, and their sense of safety being undermined [45];
(d)the Applicant experienced homelessness and instability after the breakdown of his marriage and a workplace injury [68]-[71];
(e)with a longer history of cannabis use from 18 years of age, the Applicant developed a daily methamphetamine habit as pain relief for his injury and began to use alcohol heavily [72];
(f)multiple stressors led to severe mental health challenges for which the Applicant received treatment including medication [73];
(g)relevant factors concerning rehabilitation include Mr Sione’s work history and participation in vocational and offending-related programs, and social supports in the community, and overall his prospects were accepted as ‘guardedly optimistic’ [124]-[125]; and
(h)given the generally favourable rehabilitation prospects, a community corrections order following imprisonment was judged appropriate to facilitate reintegration into the community, assist in rehabilitation, and to better protect the community [135].
I note Mr Sione’s sentencing includes the following mandatory terms (G5, 64):
(a)supervision under a community corrections order for 15 months;
(b)assessment for treatment and rehabilitation for drug and alcohol abuse or dependency;
(c)mental health assessment or treatment as directed; and
(d)participation in programs or courses that address factors relating to his offending.
There is information concerning violent offending in mid-2021 in the materials in the form of a preliminary brief prepared by a police informant (SG1, 31). The circumstances of the offences of aggravated burglary, recklessly cause injury and theft, it is said, arose from Mr Sione attending the property of an 82-year-old lady where she conducted a dog breeding business. Mr Sione was alleged to have entered the property on the pretext of seeking to have the victim make a payment of money, left the property at the victim’s request, then re-entered to remove three puppies and pushed the victim over causing significant bruising, and also confined her movements in the property.
There is also a large body of information primarily located in police database material produced under summons (LEAP records) (SG3). I note the detailed summary provided in the RSFIC of Mr Sione’s family violence offending and other related conduct [7]. That is, in addition to the convictions summarised briefly above, this body of material indicates three instances of family violence I understand to involve Mr Sione’s ex-wife (in each of 2017, 2018 and 2019) and six other instances I understand to involve a former partner (in 2018).
According to this material, the instances involving Mr Sione’s ex-wife did not involve physical contact with her, but the 2018 incident involved an argument, and the victim reported frequent instances of aggressive conduct (SG3, 156). The 2019 incident was said to involve an argument, acts of aggression and a threat of violence, and it took place in the presence of a young child and while the victim was six months pregnant (SG3, 174-175). The material includes references to the victim fearing for her safety including with the Applicant getting in her face and rushing at her, as well as her expressing concerns for Mr Sione’s mental health. Although no family violence intervention order is contained in the materials, this is implied from the breach offence for which Mr Sione was convicted in August 2019 (G3/A).
The incidents in 2021 are more complicated and do not consistently provide clear reports of physical contact, although this is implied (SG3, 109-110; G66). There are reports of public disputes (SG3, 109-110; SG3, 149-150) and an incident of forced entry to a property (G7/E). Again, records of formal notices are absent but the Applicant was convicted of contravention offences in respect of an interim family violence order and a family violence safety notice in October 2021 (G3/A).
All of the above instances of offending or conduct were addressed at length in Mr Sione’s evidence at the hearing. Mr Sione largely accepted and acknowledged his record of offending and other conduct, but his evidence did include commentary about the nature and circumstances of the conduct leading to convictions, and the other family violence conduct. I will therefore consider his evidence in more detail in respect of the second element of this primary consideration.
There is very little information in the materials to indicate whether, or to what extent, alcohol or drug use was relevant to specific instances of Mr Sione’s offending. The plea submission for the offending involving the elderly woman indicates that he was drug-affected at the time (SG1, 22), and I understood Mr Sione to accept in evidence he was drug affected. The Applicant confirmed in evidence that his drug taking was by way of pain management for a workplace shoulder injury in or around 2016.
There is some evidence before me as to Mr Sione’s history of mental health treatment but limited clinical material, if any, exploring its relevance to the Applicant’s record of offending and other conduct. In evidence, Mr Sione spoke of an attack sustained while living in Samoa in which he was struck to the head with a home-made axe, resulting in stitches. He also confirmed the reference in plea material to sustaining a head injury while boxing which resulted in loss of consciousness and hospitalisation (SG1, 64).
The Respondent submitted that the Applicant’s conduct should be considered very serious and it included violent offending against women, an elderly person, and a pregnant woman. It was contended there is an increase in seriousness of the offending over time as well as repeated instances of some offending types. It was further contended that there is evidence of the impact of offending on victims. The Respondent submitted that the Direction provides that the safety of the Australian community is the highest priority of the Government and that this part of this consideration should weigh heavily against revocation.

The Direction identifies as ‘very serious’ crimes of violence, crimes of a violent nature against women, and acts of family violence whether or not there is a conviction for an offence, or a sentence imposed (8.1.1.(1) a) i-iii). Crimes of violence against vulnerable members of the community including the elderly are identified as ‘serious’ (8.1.1.(1) b) ii). I consider on the basis of the evidence before me that I can be satisfied that Mr Sione’s offending history includes multiple instances of very serious conduct and also of serious conduct, and I also take note of the fact that he has breached family violence orders.
Mr Sione has been sentenced to multiple sentences of imprisonment of increasing length, but he was also sentenced on the last occasion to continue after imprisonment to a CCO. This would appear to reflect the sentencing judge’s view as to overall seriousness of this set of offending, and I consider it reasonable to infer that the specific mandatory terms relating to rehabilitation efforts are indicative of the significance of Mr Sione’s longer term drug and alcohol use issues. Therefore, in short, I consider that Mr Sione has received some sentences of a relatively moderate nature, but of increasing severity (8.1.1.(1) c)).
I consider the material that may indicate something about the impact of offending or other conduct upon victims to not be sufficiently substantive in order to base a specific finding (8.1.1.(1) d)).
Mr Sione’s offending was quite sustained and frequent across the years 2019-2023 and I consider that it demonstrates increasing seriousness and includes multiple instances of repeat offending (8.1.1.(1) e)). I ultimately consider the cumulative impact to be quite serious (8.1.1.(1) f)).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Mr Sione gave evidence about his childhood and background consistent with that in the materials. I note that there are several sources of personal information including plea and bail submissions in 2021 (SG1, 20), 2022 (SG1, 54), and 2023 (SG1, 60). The Applicant was adopted into the family of a church leader at a very young age and grew up with several step-siblings. Mr Sione attended primary, secondary and tertiary education, attaining certificates in tourism and business. He attained a further certificate level qualification in Australia in civil engineering. Mr Sione also had experience in competitive soccer which took him to New Zealand for an extended stay, one of several in that country.
The Applicant had a history of employment in the tourist sector in Samoa in both management and entertainment. In Australia, Mr Sione had employment in warehousing duties, followed by work in civil engineering which encompassed several roles including asphalting. He also gave evidence that he worked in a more casual role with a roller door installation business. There is information in the material indicating periods of unemployment and associated financial stress affecting his marriage, but I am not able to determine how persistent any periods of unemployment may have been.
A list of various vocational certificates and other educational courses completed while in custody is included in plea material (SG1, 69). Summons material includes certificates for the following therapeutic programs: AOD 24 Hr Drug Treatment for Men with Mr Sione described as attending eight out of ten sessions, and displaying some mildly disruptive behaviour (SG5, 950-952); and, several elements of the ATLAS personal development and wellbeing program (SG5, 954-958).
Sentencing remarks also refer to the Applicant completing a release related harm reduction program and work undertaken with the ‘Restart’ program, allowing the identification of transitional supports (G4/B [124]). Consideration was also given to the opportunity said to be offered by contacts in the community for accommodation.
In his evidence, Mr Sione stated that he would not in fact be relying now upon these individuals. Rather, he confirmed that Mr Utumapu (Exhibit A1) would be able to assist with accommodation. I note from the letter of support that Mr Utumapu offers accommodation and to help him with ‘his attitude’ and encourage Mr Sione to ‘use his talents for the Lord like he used to’ when Mr Sione was still connected to the church community growing up. Mr Utumapu notes that he has been in Australia since 2018, but only later found out about the Applicant’s difficulties, and now offers to take Mr Sione under his care. Mr Utumapu is a former police officer, and actively engaged with the church in his community.
The materials include the report of Mr Sione’s assessment in October 2023 for the purposes of his CCO (SG5, 745-746). The report observes that Mr Sione was ‘forthcoming’ about his offending and thought he was helping his cousin, but appreciates he was under the influence of drugs and alcohol. The Applicant is described as showing insight and remorse, and that in future he plans to focus on work, his children ad connecting with community. The report notes further that Mr Sione has been referred for a mental health screening assessment by the court, but no outcome has been received. The report concludes that identifiable protective factors ‘such as familial support, stable accommodation and his motivation to gain employment …’ make the Applicant a suitable candidate for his CCO.
Mr Sione generally confirmed in his evidence that he had experienced mental health challenges in the past, including a period of admission (referenced in the plea information, and said to be during March 2021, (SG1, 68)). He confirmed prior use of prescribed medication for mental health issues, and that he had also been prescribed anti-depressant medication in prison and in immigration detention, although his usage varies as this medication can cause him some stomach issues. Mr Sione also stated he had recently commenced counselling sessions in immigration detention and he had previously attended several sessions in prison with a visiting chaplain.
I note that the Respondent did not lodge records from the Applicant’s time in detention, such as incident reports or IHMS records. There is also no formal clinical assessment in the materials concerning Mr Sione’s risk of re-offending.
As noted above, some time was taken in evidence to take him to his offending and other conduct:
(a)when asked about the armed robbery, Mr Sione in essence played down the apparent planning, and explained that he wanted to prevent the co-offender being forced to provide sexual favours for drugs;
(b)with respect to the aggravated burglary, Mr Sione stated that it was not a ‘standover’ activity and that he had just been asked to drive his friend to ask the victim for money, and he denied assaulting the victim, stating that ‘the lady fell’;
(c)despite a range of evidence to the contrary, Mr Sione insisted that he plead guilty to these offences straight away;
(d)in relation to offences including theft of a motor vehicle and associated dishonesty charges (for which he was convicted in October 2022), Mr Sione explained that he was moving house using a vehicle borrowed from a friend and had not been aware that it and its contents were stolen; and
(e)earlier dishonesty and property offending (for which he was convicted in early 2020) was a result of hanging around with the wrong crowd.
I summarise Mr Sione’s evidence about his family violence offending and related conduct:
(a)he appeared to accept that he had been subject to a final intervention order in relation to his ex-wife, and explained his presence at home leading to contraventions as arising from his unstable accommodation;
(b)he was unable to explain why the order was put in place, and offered the explanation that much of his trouble arose from financial difficulties arising from his workplace injury, and he repeatedly raised in evidence the poor state of his relationship with her family and his lack of support, including in relation to his work injury (he stated a number of times in evidence that he was ‘alone’ in Australia);
(c)he did not understand why there were written reports in the material about fear felt by his ex-wife during family violence incidents because she had seen him react aggressively in Samoa, such as by punching walls as a way to deal with anger, and had nothing to be concerned about as he had never hit her;
(d)he confirmed that other family violence offending and related conduct was in respect of a former girlfriend, that an intervention order active until 2030 had been granted, and stated that contraventions arose because she ‘stalked’ him, indeed Mr Sione stated in evidence that he had been advised by police to place an intervention order on this person;
(e)that bruising to the victim’s jaw on one occasion arose from her grabbing him, and his head hitting her jaw when she blocked him;
(f)that he did not damage the door of a property after half an hour attempting to get in and his attendance on this occasion was to get his partner out of the house where he understood her to be using drugs, and he was attempting to get her to go to her children as he understood she had intended to do;
(g)that a public argument in a bowling club carpark arose after an argument about fidelity and on this occasion, he had pretended to hide the victim’s car keys in order to create a situation where the allegation could be tested in conversation with another person; and
(h)he admitted throwing rocks damaging the victim’s car in what I understood to be a prolonged encounter taking place in a car in the street, explained that bruising arose from trying to prevent the victim getting out of the car, and denied self-harming in front of the victim but explained that she was bi-polar and experienced mental health issues.
At different points in his evidence, Mr Sione stated that he had ‘put his hand up’ in court and plead guilty to his various charges. In respect of incidents with his former girlfriend, he also stated that he had done things the wrong way. When I raised with Mr Sione the various explanations provided for much of his offending, he stated that he was not attempting to portray himself as a victim, but that he had provided ‘stories for the reasons why I did these things’, and that ‘at the time I thought it was the right way’. Mr Sione added that he had learned from talking to others in prison about his wrongdoing, and had made mistakes.
When asked about what he had gained from rehabilitation programs, Mr Sione stated he had learned how to put himself in the ‘right place’, and to use time for ‘something good’. He understood now about triggers for drug and alcohol use and denied being disruptive in his program, stating that he had sought to distract others from arguments. He stated that he understood about the harm to himself and others arising from drugs. During evidence I asked Mr Sione directly about his substance use, and he confirmed that he has not used drugs in prison and considered that his shoulder was no longer a problem.
During closing submissions, Mr Sione related that he had in some way accessed a large sum of money in return for previous favours done in prison, to pay a deposit on a rehabilitation program upon release from prison. It was unclear how the program had been arranged or what it was for. It appeared from his statements that the money had in any event been diverted for personal use by another person. The upshot appeared to be that the information was provided by way of indicating the Applicant’s commitment to post-release support.
Mr Sione was asked about a series of reports concerning apparent conduct incidents in prison (SG5, 793-811). He acknowledged that he had been involved in or associated with some fights, and with tattooing. Mr Sione explained that he had been involved in the resale of drugs (‘bupe’), coordinated the distribution of nicotine patches, had possessed and used tattoo equipment, had been fined in disciplinary hearings on multiple occasions. He admitted to participating in two assaults, one of which he explained by saying that he could not stand bullies.
Later, in closing submissions, Mr Sione disclosed two conduct incidents in immigration detention which he stated took place prior to the commencement of his counselling sessions. One involved a fight with an ‘arrogant bad boy’ who thought Mr Sione was a ‘little boy’ and the officers did not want to deal with him. In a second incident, Mr Sione admitted to throwing a broken sandwich press, after a dispute with staff about it not being replaced.
In his closing submissions, Mr Sione stated that he wished to take the opportunity to say he is very sorry and that he feels remorse for what he has done. He stated that he takes responsibility for his offending and does not blame anyone else, although restated that he had reasons for being in the circumstances in which he found himself. The Applicant contended that he had been immature and unable to face his challenges and has now learned how to respond. Mr Sione noted his experience of depression and anxiety in custody and that he misses his children. He would like the opportunity to show that he has learned from his mistakes.
The Respondent submitted that there was limited evidence about what Mr Sione had learned from rehabilitation programs undertaken. I understood the contention to be made that the Applicant was required to comply with the CCO and had been identified as in need of further therapeutic intervention and support. The Respondent submitted that the evidence overall suggests the Applicant has a long way to go to properly accept responsibility for his actions, and has a sustained record of misconduct in prison and immigration detention.
It was contended that Mr Utumapu would carry a large burden as the only person responsible for making a positive contribution toward preventing Mr Sione reoffending. While the Respondent did not openly challenge the nature and strength of the ties between the Applicant and his relative, it questioned why they had not been in contact earlier in Mr Sione’s life in Australia, and contended that this social support was untested. The Respondent further contended that it was likely Mr Sione will face further stressors if returned to the community and his plans for the future, while creditable, were aspirational. Given the Direction holds that tolerance for a future risk reduces as the seriousness of that risk increases, this consideration should weigh significantly against revocation.
The Respondent correctly identifies that this consideration commences with the statement that I must 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’ (8.1.2.(1)). Furthermore, the Direction provides that some harm may be so serious that any risk of it being repeated is unacceptable.
I must first consider the nature of harm to individuals or the Australian community should Mr Sione engage in further criminal or other serious conduct, and the likelihood of him engaging in further criminal or serious conduct (8.1.2.(2) a)-b)). Evidence concerning risk and rehabilitation are critical components of this assessment. Relevantly, it was held in CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [74], that:
In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which it occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
I consider all of the evidence, including that from the criminal sentencing process in respect of Mr Sione’s most recent convictions, to indicate that multiple factors contributed to his offending, being: excessive drug and alcohol use; periods of unstable employment and income; and, periods of homelessness. I am less certain about the role of poor mental health in his offending, but it cannot be ruled out. His offending was, as has been seen, quite frequent and diverse.
I accept the general conclusions of the CCO report that with various appropriate supports in place, Mr Sione is suitable for release into the community. I do consider the Respondent to have raised a valid point which is that the durability and overall value of what is effectively a single source of community support (Mr Utumapu) is a matter of concern. I add further, that the Respondent is also correct to highlight the quality of Mr Sione’s evidence concerning the cause(s) of his offending. I had the benefit of observing the Applicant for nearly two days and I am not confident that he has in fact properly grasped the gravity of his criminal record overall. Moreover, his consistent tendency to downplay his responsibility for family violence conduct (interpreted broadly) is a matter of serious concern. Put simply, this raises a real uncertainty in my mind as to the Applicant’s capacity to understand the nature and circumstances of his offending and other serious conduct. This, in turn, means there is uncertainty about his personal contribution to interrupting the ‘cycle of regularity’ of his offending.
I consider a brief note concerning the use of police reports is necessary. I raised with the parties at the commencement of the hearing that – were Mr Sione to be legally represented – something might be said about the reference in the RSFIC to police records (see at [24] above) and their use in the hearing. However, I consider it a reasonable statement of the law that it is consistent with the principle of procedural fairness that an applicant be given a fair opportunity to comment on and if necessary contradict such material (Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106; Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99). As noted, Mr Sione was taken through all relevant material and I consider I have sought to treat the evidence arising with care.
Somewhat in contrast to the Respondent’s contentions, I consider the CCO as a likely positive support in the community. The indications are – albeit slight – that Mr Sione has some insight into the benefit of rehabilitative treatment. I accept that he has now shown interest in counselling and appears to understand the benefit of prescribed medication for his mental health. Fundamentally, I consider that I must give due weight to the existence of ongoing formal supervision in the community. It is also relevant that Mr Sione appears to have remained sober.
Against this, I must also weigh what I consider to be a consistent record of poor behaviour in prison and detention. Not only are there instances of violence, the Applicant’s attitude more broadly, as shown through the breadth and depth of incidents, indicates to me that he does not grasp the importance of a degree of deference to authority. I consider that this too raises questions about his capacity to act positively and constructively, even in the framework of a CCO.
I find, accordingly, that there remains a real risk of violent reoffending and that, accordingly, the Applicant may cause serious harm to the community. This finding is reinforced, by his only partial insight into his personal responsibility for past acts and further, that the risk of further harm is unacceptable.
Summary finding
I have found that Mr Sione’s past offending and other conduct is to be considered very serious. I have also found that there is a real risk of future conduct of a similar type, and therefore of harm to the community.
On this basis, I find that this primary consideration overall weighs heavily against revocation.
Family violence committed by the non-citizen

As noted above, Mr Sione has convictions for family violence related offending. Family violence is broadly defined in the Direction as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family’ (4(1)). Further, a member of a person’s family is defined as including a person who has, or has had, an intimate personal relationship with another person.
This consideration is founded on the serious concerns arising from permitting a person who has committed acts of family violence the privilege of remaining in Australia, a concern proportionate to the nature of the family violence (8.2(1)).
I have set out above evidence in respect of this offending and other conduct, which I also rely upon under this consideration. I note, briefly, that assessment of facts relevant to family violence under separate mandatory considerations of the Direction is permissible (Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [42] (Ismail)). The court there specifically determined that it was not unreasonable to address the same circumstances again in overlapping, but distinct, contexts [44].
I note that Mr Sione was invited in evidence to confirm whether a conviction for unlawful assault in May 2022 was related to the instances of offending and other conduct involving his former partner. Mr Sione agreed with this proposition, but I also understood the Respondent’s representative to state that the wider materials did not offer information concerning the circumstances of the charge.
The Respondent made extensive oral submissions at the hearing on this consideration. It was contended that the evidence discloses several instances against two partners of a variety of kinds, up to and including physical assault. The Respondent further submitted that there was evidence of a wider pattern of conduct constituting family violence beyond the instances of conviction.
It was also contended that the evidence overall indicated that the Applicant’s conduct caused fear of harm, and that Mr Sione demonstrated a lack of insight into the impact of his conduct. In this respect, it was submitted that the Applicant’s evidence about his behaviour contained an element of self-justification.
The Respondent submitted that the evidence substantiated a finding of an increasing frequency and intensity of family violence and that the consideration weighs significantly against revocation.
I consider that, in the context of Mr Sione’s criminal conduct his convictions for family violence offending – consisting of at least four charges – represent a good proportion of his overall offending, and that the evidence overall demonstrates a large number of other instances of family violence conduct. Accordingly, I consider this conduct to have been frequent (8.2(3) a)). It would appear from Mr Sione’s evidence that he may have been in regular breach of the intervention order in respect of his former wife. However, given the limited corroborating evidence, I give this only limited weight.
The evidence indicates that the Applicant’s former partner was the victim of several instances of family violence, and because of this, and the fact that Mr Sione offended again after his initial conduct against his wife, I give weight to the cumulative effect of repeated acts (8.2(3) b)). I am unable to make a specific finding about offending following an official warning due to the limited material before me (8.2(3) d)).
I set out above evidence and findings concerning Mr Sione’s attitude to his offending and other conduct. With reference to this material specifically, I find that Mr Sione has not fully accepted responsibility for his family violence conduct due to his tendency to downplay the significance of events and their impact on the victims and those present 8.2.(3) c) i-ii). The evidence does not disclose participation in any program specifically related to family violence offending and – based upon the finding immediately above – I also find that limited effort has been made by the Applicant to address factors contributing to his conduct (8.2.(3) c) iii)). I do give some weight to the general progress made with various other programs – and insight developed – about other relevant factors such as drug and alcohol use.
Overall, I find that this consideration weighs heavily against revocation.
The strength, nature and duration of ties to Australia
The Direction requires consideration be given to the impact of the decision about revocation on immediate family members in Australia (where they are citizens or permanent residents) and the strength, nature and duration of other ties to the Australian community (8.3(1)-(2)).
Mr Sione in his evidence did not disclose any immediate family members in Australia other than his two children (see further below). He noted his friendship with Mr Utumapu, who he stated he was close to when in Samoa, but whom he appeared to have only recently reconnected with. The Applicant also referred to connections in the church, although he had not been a regular churchgoer when in the community. Mr Sione named a particular church figure who he had reached out to for help and also stated that he has a third or fourth cousin in Australia.
I note that in the materials, reference is made to a brother in Australia (G4, 50) but this is contradicted by Mr Sione’s oral evidence, and I understood him to describe this individual as a friend. As noted, he also indicated that he did not intend to rely upon them for immediate support should he return to the community. Mr Sione also stated in evidence that he does not know the location of his brother.
There is also an indication in the materials that Mr Sione performed volunteer work through his church community (G4, 40) although in his evidence he described a different form of assistance being helping with food drops during the COVID-19 pandemic. I have noted above the Applicant’s diverse work experience.
The Respondent submitted that the majority of the Applicant’s family is in Samoa or New Zealand. Given his modest local connections and work history, it was contended this consideration weighs somewhat in favour of revocation.
The Respondent also contended that Mr Sione’s nine year’s residence was a relatively modest amount of time. I do not fully accept this proposition, however, taking note of his time in prison and immigration detention, the Applicant has only been in the Australian community for approximately six years. Of this time, only four years were free of criminal conduct, but I accept that Mr Sione has a relatively decent history of employment.
Overall, however, I find that Mr Sione has limited family and social ties to Australia, but I do accept that his departure would have an impact upon his children (noting that this also receives separate consideration below).
Accordingly, I find that this consideration weighs slightly in favour of revocation.
Best interests of minor children in Australia affected by the decision
This consideration requires a determination as to whether non-revocation is, or is not in the best interests of any child affected by the decision (8.4(1)-(3)).
There is no dispute in this matter that Mr Sione is the biological father of two children from his relationship with his ex-wife, presently aged seven and eight. Mr Sione’s evidence was consistent with that provided in writing (G12, 97). He is formally divorced from his former wife and it was somewhat unclear what formal arrangements had been made as part of this process. He gave evidence, however, that when in the community he had regularly had access to his children including conducting school pick-ups several days a week and funding not only his time spent with them, but also paying for their education. Mr Sione stated that he maintained contact with his children by phone until approximately April 2023 but reverted to correspondence and cards due to their remote contact.
The Applicant’s evidence about the potential of maintaining contact if returned to Samoa was not clear and clouded somewhat by his emotional reaction to this question. He did, nonetheless, state in evidence and submissions that he considered his ex-wife to be a good mother and that he wanted her to get on with her life. In his written material, Mr Sione submitted that growing up without a father will ruin his children’s mental health (G12, 104).
The Respondent submitted that this consideration weighs in favour of revocation, but that should not outweigh the other primary considerations that weigh against revocation (RSFIC [54]).
I find that Mr Sione had a direct parenting relationship with his children for their lives prior to his incarceration, and has maintained meaningful contact since that time (8.4(4) a)). Based upon this, and the age of the children, I consider it likely he would continue to play a positive parental role if returned to the community (8.4(4) b)).
While I accept that it appears at least one child was present during a police call-out for family violence, I have very little evidence about this, or the impact exposure to family violence or other behaviour may have had. Accordingly, I cannot make a specific finding about whether Mr Sione’s conduct has had a negative impact on either child (8.4(4) c), g), h)). I also have no direct evidence as to the impact of separation, but note that there has been no physical contact since he was incarcerated in mid-2021 or communication by other means since that time (8.4(4) d)).
The limited evidence that I have indicates that Mr Sione’s ex-wife has been and continues to maintain effective and appropriate parental responsibility for his children (8.4(4) e)).
On balance, I find that this consideration weighs heavily in favour of revocation.
Expectations of the Australian community
This consideration emphasises two linked expectations of the Australian community: first, that non-citizens obey the law; and second, that the Government not allow those who breach this expectation, or present an unacceptable risk of doing so to remain (8.5(1)). This has repeatedly been held by courts to be a norm, or standard, and I am not to try to judge the community expectation in a particular case, although I must assess the weight of this consideration in the context of the other considerations (Ismail [52]) (8.5(4)).
The Direction also provides that non-revocation may be appropriate because of the nature of character concerns that arise, and highlights that acts of family violence raise serious character concerns, as does the commission of serious crimes against women or other vulnerable members of the community (serious includes violence) (8.5(2)). In these cases, the expectations apply regardless of whether a measureable risk of causing physical harm to the community exists (8.5(4)).
It was submitted for the Respondent that this consideration should weigh heavily against revocation given the nature of the Applicant’s offending.
I have found that Mr Sione’s offending includes serious offending and I find therefore that the nature of this conduct raises serious character concerns as identified in this part of the Direction. I have also found that there is an unacceptable risk of reoffending.
For these reasons, I find that this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
There are three specified other considerations in the Direction, but I am not limited to considering these alone. On the evidence before me, I do not consider that the other consideration Impact on Australian business interests is engaged, and accordingly it weighs neutrally. I also do not consider that any other kind of consideration arises in this matter.
Legal consequences of the decision
This consideration essentially addresses the need to weigh up the fact of possible ongoing detention against any risk of harm upon return to their country of origin. Under the Act, an unlawful non-citizen is liable for removal as soon as possible, and detention until that happens (9.1(1)). However, Australia also has an obligation not to return a person to a place where they will be at risk of harm as understood by the protection obligations expressed in the Act (9.1(2)).
The Direction distinguishes between circumstances in which a person is covered by a protection finding, and those in which it is open for an Applicant to apply for a protection visa which is the case in respect of Mr Sione. In these circumstances, consideration must be given to any claims of harm raised, but it is open to defer assessment of such claims (9.1.2(1)-(2)).
Mr Sione has made two written statements in respect to problems on return to his country of citizenship:
(a)‘… I can’t go back home because for the safety of myself. My dad died and so no one can protect me if his cousin and his kids plan to harm or kill me. That’s why I didn’t go to my dad’s funeral because he already told me what’s going to happen, if his not around. That’s what my dad told on the phone, on a month before he die’ (G11, 88); and
(b)‘Carry on family dramas, but its going worst now, because my dad passed away, so they can do whatever they want for revenge’ (G12, 104).
He elaborated on this material in his evidence, stating that it was due to Mr Sione apparently revealing a confidential and sensitive piece of information about the abusive conduct of an uncle which I gathered brought shame upon his family. Mr Sione was unable to articulate any more specific form of threat, but also stated that his mother had generally confirmed to him that he was at some kind of risk and she, herself had possibly been subject to poor treatment from a form of harassment.
As noted above, Mr Sione had also described in his evidence some form of violent confrontation when living in Samoa, but it is not clear whether this is related to his fear of harm. While he seemed unsure about what a protection visa application entailed, I confirmed with him at the hearing that this option was open to him.
In his closing submissions, Mr Sione reiterated that he is scared to return home. The Respondent acknowledged evidence given concerning fear of return, but submitted that the lack of detail indicated that the appropriate course was to defer assessment under this consideration.
I consider that although Mr Sione appeared sincere about his concerns while giving evidence, there is insufficient material for me to make any substantive assessment of the true nature and extent of likely harm to him in Samoa. For this reason, I consider that the best course is to defer consideration of Mr Sione’s claims as he is entitled to have them addressed in the protection visa process.
I have noted above Mr Sione’s current mental health treatment and longer history of issues and treatment. I have some concern about the effect of ongoing detention upon him, albeit there is a lack of comprehensive medical information before me, and I also take account of the fact that indefinite detention is not a prospect.
On balance, I find that this consideration weighs neutrally.
Extent of impediments if removed
This consideration involves an appreciation of any impediments a non-citizen may face in re-establishing themselves in their home country, measured by the standard of what is generally available to other citizens of that country (9.2(1)).
Mr Sione stated that were he to return to Samoa he could obtain work with ease. He stated that it was important he live in and around family, and therefore could not establish himself in a location away from potential family conflict.
The Applicant gave evidence that his immediate family consists of his mother and brother in Samoa and a sister in New Zealand. He also gave evidence about a larger number of members of a wider family network. During submissions at the hearing, Mr Sione provided additional evidence about information he had obtained following the first day of the hearing. He stated that he had just been informed that his sister recently visited Samoa and left to return to New Zealand, and had made preparations for his brother and mother to also travel to New Zealand in the future.
Given his current medication and history of mental health concerns, I asked Mr Sione whether having a mental health condition might be problematic in Samoa. He indicated in his response that mental health was not well accepted, and therapeutic treatment may be difficult.
In its submissions, the Respondent noted the Applicant’s age on arrival in Australia, as well as his educational and work background in Samoa. Mr Sione’s updated evidence about possible family travel plans was noted. It was contended that while the Applicant may face some initial impediments this would be temporary and this consideration does not weigh in favour of revocation.
Mr Sione grew up in Samoa and was educated there, has an extensive work history, and therefore I do not consider he would face any language or cultural barriers or any particular economic hardship in Samoa. Based in particular on his revised, or updated evidence about his family situation, it may be that social support from immediate family are either not available or not likely to be longstanding, on the assumption that there may be migration to New Zealand.
Given Mr Sione’s stated fear of harm, it may be reasonable to assume that should this ultimately fall short of actual danger, it may nonetheless create some longer-term impact upon his resettlement in Samoa. This, together with some potential issues arising from maintaining treatment for his mental health, mean that there is more than a remote chance of him experiencing some social isolation.
On balance, I find that this consideration weighs very slightly in favour of revocation.
CONCLUSION
Of the primary considerations I have found that three weigh heavily against revocation: Protection of the Australian community; Family violence committed by the non-citizen; and, Expectations of the Australian community. I have found that the consideration Best interests of minor children in Australia affected by the decision weighs heavily in favour of revocation, and that The strength, nature and duration of ties to Australia weighs slightly in favour of revocation.
Of the other considerations, I have found that Extent of impediments if removed weighs very slightly in favour of revocation, and two weigh neutrally: Legal consequences of the decision; and, Impact on Australian business interests.
In this matter I do not consider there is any factor that justifies a change to the generally greater weight to be given to the first primary consideration, nor to the cumulative weight against revocation given to two other primary considerations (7(2)).
Mr Sione has not respected the privilege afforded of coming to Australia and has breached the expectation that he obey the law and not cause or threaten harm to individuals or the Australian community. The nature and extent of his conduct is such that the real risk of further offending or harmful conduct cannot be ignored and is unacceptable, and I must give appropriate weight to the inherently bad nature of family violence conduct. I also give due weight to the fact that Mr Sione has not lived in Australia from a young age.
DECISION
For the reasons given above, the Tribunal affirms the decision of the delegate of the Respondent Minister dated 9 May 2024 not to revoke the mandatory cancellation of his Class BC (Subclass 100) Partner visa.

I certify that the preceding 117 (one-hundred-and-seventeen) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Member

.............[SGD]..............

Associate

Dated: 1 August 2024

Date(s) of hearing:

22 and 23 July

Solicitor for the Respondent:

Ms Tegan Weir

Solicitors for the Respondent:

HWL Ebsworth Lawyers

Date(s) of hearing:	22 and 23 July
Solicitor for the Respondent:	Ms Tegan Weir
Solicitors for the Respondent:	HWL Ebsworth Lawyers