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

Sopoaga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1749 (1 June 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1977
Re:Sami Sopoaga
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:1 June 2022
Date of written reasons: 21 June 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 8 March 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
.................................[SGD].......................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction no. 90 considered – decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
21 June 2022

Sami Sopoaga (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the decision of the delegate was set aside and substituted on 1 June 2022.
INTRODUCTION
The Applicant is a 27 year old citizen of New Zealand who immigrated to Australia along with his family on 28 February 2010 when he was age 15.
On 22 April 2020 the Applicant was sentenced to a term of imprisonment of three years imprisonment for the offence of Robbery armed with offensive weapon-SI. On 13 May 2020 his visa was cancelled under subsection 501(3A) of the Act as he did not pass the character test owing to having a substantial criminal record (the mandatory cancellation decision).
On 2 June 2020 the Applicant made representations seeking revocation of the mandatory cancellation decision and provided additional material on 1 November 2022 and 22 February 2022 in response to invitations to comment.
On 8 March 2022 a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa (the non-revocation decision). The Applicant was informed of the decision on 9 March 2022 and on 10 March 2022 he applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
It is agreed by both parties that the Applicant does not pass the character test as he has a ‘substantial criminal record’ as defined by the Act. Therefore, the only relevant issue is whether there is another reason to revoke the mandatory cancellation decision.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
EVIDENCE
Background
The Applicant is the fourth of seven children in his family. He, his parents and siblings immigrated from New Zealand to Australia in February 2010. With the exception of 17 days overseas, he has remained in Australia ever since.
The Applicant, who does not consider himself academically gifted, chose to finish his schooling in year 10 and began working – initially as a security guard and in various labouring jobs and later as a water-blaster. The income he earned helped him to provide for his parents and siblings.
Prior to his arrest the Applicant was engaged to Merepeta Suega. Their son, who I will refer to as IG, was born in August 2018.
At age 19 the Applicant began gambling. His gambling progressed over time to the point of becoming compulsive. He gambled primarily on poker machines and horse races, sometimes at a betting venue, but also on his phone.
In April 2020 the Applicant was sentenced to a term of imprisonment which led to the mandatory cancellation of his visa. Whilst in prison his mother was diagnosed with cancer, and she passed away in November 2021.
Should he be released back into the community, the Applicant has an offer of employment with Clearview Cleaning. He plans to resume living with his father and his siblings, where he would also be able to care for his son. He reports that though they are no longer together, he and Ms Suega have a good relationship.
Evidence and report of Sava Tsolis, clinical psychologist
The Applicant has been receiving treatment from clinical psychologist Sava Tsolis who performed an assessment of the Applicant in October 2021. Mr Tsolis has provided a report dated 29 October 2021 and a further report dated 21 April 2022. The Applicant has completed eight counselling sessions with Mr Tsolis which he described as helpful. He plans to continue treatment should he be released back into the community.
Mr Tsolis has diagnosed the Applicant with generalised anxiety disorder with a secondary diagnosis of persistent depressive disorder. Mr Tsolis reports that the Applicant was ‘able and motivated’ throughout therapy and recommends he continue treatment for a further six to eight months.[1]
[1] Letter of Mr Sava Tsolis dated 21 April 2022.
Mr Tsolis also gave evidence at the hearing, which is detailed later in these reasons.
Character references and statements
Statements of support for the Applicant have been provided to the Tribunal by the following individuals, who also provided evidence at the hearing.
Senior Pastor Pati Lauvi is the pastor at the church the Applicant and his family attend. He writes of the Applicant’s remorse and shame at his offending. He has known the Applicant and his family for over 10 years and states that the Applicant was always very helpful at church. He told the Tribunal that he last spoke to the Applicant when he was transferred to immigration detention and he believes he has learnt a valuable lesson from his offending.
Fiaalii Vaafusuaga is the Applicant’s father. He says that his son has acknowledged the serious nature of his offending and always speaks of the shame and sadness he feels for his conduct and the harm caused to the victims of his offending. He writes that his wife, the Applicant’s mother, passed away in November 2021 and it has been a very sad time for his family.
He writes that his daughter, Siaa, had a heart transplant two months ago. He is suffering from physical ailments including a bad back, osteoarthritis in his knee, diabetes, hypertension and gout. Given his age and that his wife is buried in Australia, Mr Vaafusuaga cannot imagine living elsewhere. He would not be able to support the Applicant financially or otherwise if he were to be deported to New Zealand.
Fiaalii Vaafusuaga told the Tribunal he had spoken to his son about his offending and that his son is remorseful. Asked why he was confident the Applicant would not reoffend, he told the Tribunal:
There’s three reasons, if I may say, Member, why I believe so. It is definitely my role as a father to ensure on a daily basis, whenever is needed to be to ensure that he will be on the right path not to reoffend again. Secondly, the support from his siblings, brothers and sisters, has been so valuable, particularly now they realise that Sami needs their support to make sure that he would be on a correct path. The other reason too, may I say, in our community, the church, everyone there is also be doing their role to ensure that Sami gets back to what he was when he was an active member of the church and, if I may add again, knowing then from Sami, he’s definitely remorseful and he’s willing to take a new leaf in his life.[2]
[2] Transcript of Proceedings (18 May 2022), p. 77.
Sabrina Vaafusuaga is the Applicant’s younger sister and twin to Selena. They are 18 years old. Sabrina knows the Applicant as a content and tender person who nurtured her and her sisters whilst growing up. She considers the Applicant to have changed and firmly believes he will not participate in further criminal activity or compulsive gambling should he be released into the community. She considers the Applicant to be of vital importance to her family and in helping to care for their sister Siaa.
Selena Vaafusuaga does not believe the Applicant poses an unacceptable risk to the safety and well-being of the Australian community. She says he is a person who has changed for the better. She says that the Applicant carries himself with an open mind and a positive attitude. He has good intentions and a deep respect for those who know him. She is confident that with the full support of his family beside him he will improve as an individual and part of the community.
She is currently studying at university full-time and gave evidence that Sabrina would also like to study but is unable to do so at the moment given the financial and other pressures on their family.
Jacob Vaafusuaga is the Applicant’s brother. He says he has the strongest relationship with his brother out of all his siblings. He said that they loved playing sports together when they were young and that he has two children, a daughter age 8 a 2 year old son.[3] He said the children are very close to the Applicant and his daughter often asked for him. He strongly believes that the Applicant is fully rehabilitated and will turn his life around so that he is no longer a risk to the community. He believes that the Applicant going to prison ‘was a big eye opener for him’ and he regrets what he has done and will not to gamble again. He says that his family did not know the full extent of the Applicant’s gambling problems until it was too late, but they now understand the need to support the Applicant.
[3] Transcript of Proceedings (18 May 2022) p. 80.
In an earlier letter of support he wrote that the cancellation of the Applicant’s visa would cause hardship to the Applicant’s son, his ex-partner and their sister Siaa who has heart failure and required at that stage a heart transplant. He observes that the trials of life have taught the Applicant many life lessons.
Solomon Sopoaga is the Applicant’s eldest brother. He says that the Applicant enjoys being involved in the community. He writes that the Applicant brings life and laughter to his surroundings and is an easy person to connect with. He does not believe the Applicant will go down the same path again because he has learnt his lesson. He understands that the Applicant is remorseful for what he has done and appreciates the negative impact his offending has had on his family, particularly his parents and two-year-old son.
Solomon notes that in conversation the Applicant told him that he never wants to go back to prison and he believes he ‘stuffed up’. The Applicant also expressed a desire to make good on becoming a better person and build connections with the ‘right types’ of people.
Rhiannan Coulson is married to Jacob Vaafusuaga. She has known the Applicant since 2011 and that they are very close. She maintained contact with the Applicant throughout his imprisonment and detention and believes that he is extremely remorseful for his offending. Ms Coulson does not consider the Applicant a risk to the community and notes his genuine efforts to rehabilitate himself.
Ms Coulson cared for the Applicant’s mother during her illness and for his sister Siaa when his mother became too ill to do so herself. Should the Applicant be released back into the community, Ms Coulson is hopeful he will be able to relieve her of some of her caring responsibilities and she will be able to return to work.
Siaa Vaafusuaga is the Applicant younger sister. She says that they interact daily and he is always positive, happy and fun. He makes her laugh and brightens up her day and they have a strong bond. He always makes sure that she is okay and takes her medication. She says that when she was young she was often in hospital and the Applicant would stay with her overnight to look after her. She believes that he will not be a risk to the community and is confident that he will not gamble again. She writes that the last few years have been the toughest yet for her family and that they need the Applicant to be there with them. She confirmed that she needs her brother to assist with her care after her open-heart transplant.
In a subsequent statement of support she writes that their mother passed away in November 2021 and this was very difficult for her and the rest of the family as the Applicant could not be there with them.
Merepeta Suega is the Applicant’s former partner and mother of IG. She gave evidence that the Applicant was a good partner and father to their child.
She says that their son is currently in need of a father to provide emotional support and financial support as she is not currently working. She has made sure that the Applicant and their son have been able to communicate daily whilst he has been in detention. She says that she cannot move to New Zealand as she does not have anyone there to support her. Should the Applicant be deported to New Zealand she notes that the Applicant will lose his chance to raise their child.
In a statement of support dated November 2020 Ms Suega writes that she met the Applicant at church in 2010. They started their relationship in 2011 and were engaged in 2017. In August 2018 their son IG was born. Up until his arrest in July 2019 was a caring and loving person. She said that the period from July 2018 to May 2019 when he was offending was a stressful time because of her pregnancy and childbirth.[4] She confirmed that the Applicant was always supportive during her pregnancy, taking her to the hospital and check-ups. She says that when her mother died of cancer in 2016 the Applicant provided her with financial and emotional support.
[4] G60/259.

Ms Suega and the Applicant began residing together in April 2018, just a few months prior to their son being born. She said that after their son was born the Applicant would help feed, clothe and care for IG. Being apart from the Applicant has been both emotionally and financially difficult for her. She does not believe that the Applicant is a risk to the safety, health or good order of the Australian community.
Lidia Bonanno is the Director of Cleanview Cleaning and has provided an offer of full-time employment to the Applicant should he be released back into the community. She is aware of his criminal offending but strongly believes everyone deserves a second chance.
Also in evidence are statements from the Applicant’s uncle, aunt and first cousins who both speak to his good nature and decency.
DISCUSSION
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
On 22 April 2020 the Applicant was sentenced to 3 years imprisonment with a non-parole period of two years for the offence of Robbery armed with offensive weapon - SI (1101 Attempt to commit offence under this Act).
On 22 February 2019 the Applicant appeared in the Mt Druitt Local Court where he was convicted of multiple accounts of Larceny-T2, Make/furnish a statement which is false/misleading, Dispose property-theft=serious indictable offence <=$5000-T2 and Break and enter house etc steal value <=$60,000- T1.
Larceny and related offences
The Applicant was employed as a security guard at a shopping centre between June and October 2018. He generally worked day shifts until July 2018 when he was moved to night shifts. As a security guard the Applicant was tasked with the day-to-day safety and welfare of shoppers and employees within the complex as well as the security of the stores. His duties required him to have access to the restricted areas of the shopping centre to ensure certain points of the centre were locked and secured. For each shift he was allocated a set of keys which provided access to the restricted areas including storerooms and delivery docks.
On 15 October 2018 the Applicant was captured on CCTV footage entering a room using his security key before climbing over a dividing fence line carrying a duffel bag and walking to a hi-fi store delivery dock. He then entered a storage cage in which goods delivered earlier were being held. He removed six sets of headphones valued at $399 each and placed them in the duffel bag. He committed similar acts of larceny on multiple occasions. Some of the items he stole were sold online while others were pawned.
On 1 November 2018 police attended his house and had a conversation with the Applicant. He was then placed under arrest and cautioned in relation to the incidents. The Applicant told police that his reason for the further thefts was because ‘he couldn’t resist the temptation’. He told police that he knew they would catch up with him, he was expecting to be arrested and that he had sold the items he had stolen.
On 22 February 2019 the Applicant appeared in the Mount Druitt Local Court where Magistrate Corry sentenced him to an aggregate sentence of 14 months imprisonment to be served by way of an Intensive Corrections Order (ICO).
In sentencing the Applicant Magistrate Corry noted he had an issue with gambling but that he had been placed in a position of trust by his employer, who was also the victim of his offending. He acknowledged the cost to the broader community caused by the Applicant’s offending and the additional insurance costs that would be borne by his employer.
Attempted robbery
On 22 April 2020 the Applicant was sentenced to 3 years imprisonment with a non-parole period of two years for the offence of Robbery armed with offensive weapon-SI.
The offending occurred on 23 May 2019. The Applicant gave evidence that on the day the offending he had been gambling alone at a pub. By then the Applicant was gambling three or more days a week. His hours of work would vary, and some weeks he would take home $1,000 and other weeks less, depending on how many hours he worked. Though he occasionally lost his entire weekly pay gambling, he said his family were unaware of his problem.
The day of the attempted robbery he had lost his weekly pay gambling. He decided he would rob a Thai massage parlour in order to obtain money to meet his financial obligations and conceal his gambling losses.
The sentencing remarks of 22 April 2020 in the District Court of NSW set out the details of the offending. The Applicant entered the massage parlour just before 5.00 pm wearing sunglasses, a black hoodie, tracksuit pants and a baseball cap. He looked around and took a wheel brace from his track pants and walked behind the counter and demanded money. On 14 July 2019 the police went to the Applicant’s home and arrested him. He was taken to Mt Druitt Police Station where he made a full confession.
In sentencing the Applicant Judge Herbert said in part:
The [Applicant] was taken to Mt Druitt Police Station given his rights and agreed to be interviewed. He made full admissions to the offence saying he went there and “demanded money”. He described the item that he was holding as “A little metal…looks like a door handle sort of shape”. He said he walked to the massage place from his home which took about 20 minutes and he found the metal item when he was on his way. He said he took it because he “thought it looked dangerous”. He said he waited 10 to 15 minutes before entering the massage centre to wait for people around there to leave. He said he used the wheel brace to “sort of scare her” and he left without money and he “just ran” home. He admitted that it was him in the CCTV stills and he said that he threw the metal object “onto the train tracks” after he left the massage parlour. He said he committed the offence because he was “low in money” that he needed to buy his son stuff, that he “had no money” he had “gambled it all.”[5]
[5] G5/54 – 55.
Judge Herbert considered that there was a degree of planning and premeditation ‘even if unsophisticated and of short duration’.[6] She noted that the wheel brace was capable of inflicting serious injury and the victim, who was a receptionist at the massage parlour and ‘in a vulnerable position’. No money was taken in the robbery and Judge Herbert concluded the offending was below the mid-range of objective seriousness. However, she considered the fact that the Applicant was at the time subject to an ICO ‘a significant aggravating factor’. Further, she concluded that the Applicant’s gambling addiction did not lessen his ‘moral culpability’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[6] G5/55.
Paragraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The Respondent contends there is a real risk that the Applicant will engage in further criminal or other serious conduct.
That the Applicant has a gambling addiction which is relatively long-standing, along with mental health issues which have contributed to his offending behaviour, is not in dispute. The Respondent submits that when he was in the community the Applicant was not motivated to address either his gambling or mental health issues despite the terms of the ICO requiring he undertake intensive psychotherapeutic treatment.
This conclusion is supported by the April 2020 sentencing remarks where Judge Herbert acknowledged the Applicant’s prior convictions for break and enter, stealing and disposing of property and that he had not accepted any of the referrals that had been made to try and address his gambling addiction during the period he was subject to the ICO.[7]
[7] G5/56.
Nevertheless, Judge Herbert appears to have accepted the Sentence Assessment Report findings that the Applicant had a history of employment while in the community, had shown a positive work ethic while in custody, and had expressed remorse and contrition for his offending.[8] He was also assessed by Community Corrections of having a low risk of reoffending.
[8] Ibid.
The Applicant told the Tribunal at hearing that he had completed a young offenders program whilst at Oberon jail and the EQUIPS foundation, aggression and addiction classes. Some of the courses were not mandatory and he gave evidence that he completed the courses in order to better himself. The Applicant also successfully completed the 16 week Gurnang Life Challenge. He submits that the courses have taught him how to deal with stress and manage different situations and believes they have helped eliminate risk of relapse into gambling or further offending.
A NSW Department of Department of Corrective Services (Corrective Services) record dated 7 October 2020 confirms that the Applicant completed the EQUIPS Foundation Program and was ‘engaged from the beginning of group sessions’. The officer writes that the Applicant had grown, involved himself in group discussion, made valuable contributions and provided honest and insightful thoughts.[9]
[9] G70/282.
A Corrective Services record of the Applicant’s visit to his mother whilst she was in palliative is in evidence. The record, dated 29 April 2021, states that the Applicant was escorted from the correctional facility and the officer found him ‘to be extremely polite, compliant and very well behaved at all times’. The officer observed ‘a level of maturity that impressed [him] and a level of trustworthiness that was both appreciated and respected’.[10]
[10] G70/285.
The positive attitude and humility of the Applicant during his time in prison stands in contrast to his conduct prior to the attempted armed robbery offence. A Corrective Services breach report dated 28 June 2019 records that the Applicant had failed to comply with the condition he perform community service work on six occasions across four months.[11] The Applicant told officers that his son was unwell, but did not provide any evidence to support this. It is noted that he had completed 54.3 of the 100 hours of community service work he was allocated on the ICO, but that that his supervision had been suspended due to his low risk level.
[11] SG5/579 – 580.
When asked at the hearing about his failure to meet his community service obligations the Applicant conceded that he did not take his obligations seriously. He also confirmed that he has yet to pay the $4,494 he was ordered to pay the hi-fi store for the offending. He told the Tribunal that his siblings had begun to pay $20 a fortnight on his behalf since he was placed into immigration detention.
Mr Tsolis writes that the Applicant reported being abstinent from all illicit drugs and alcohol and never had a problem with substances, but has been a chronic gambler since age 19.
In relation to the risk of reoffending, Mr Tsolis reports the Applicant currently poses a low risk of reoffending when assessed using the Level of Service Inventory-Revised. In his opinion, the Applicant began gambling as a means of coping with high levels of anxiety that he had been experiencing since early adolescence. Gambling enabled the Applicant to remove his sense of self for short periods. The Applicant’s gambling became increasingly problematic as he used it to avoid the symptoms of the anxiety and depression he was experiencing. The Applicant would routinely lose his weekly pay. Unable to meet his financial and familial obligations, he entered into a ‘vicious cycle of anxiety and avoidance coupled with shame and guilt’.[12]
[12] G40/203.
Mr Tsolis does not believe the Applicant exhibits an entrenched criminal proclivity or propensity to engage in offending behaviours. He notes the Applicant’s criminal offences were neither planned nor well thought through. They were, in Mr Tsolis’ opinion, impulsive acts by a young man who was both desperate and ashamed of his gambling and associated actions.
Mr Tsolis also notes the Applicant has taken responsibility for his actions. Despite at times having limited insight into himself and his offending, the Applicant has nonetheless come to appreciate the gravity of his actions. Mr Tsolis also notes that the Applicant’s family remain committed to him and he is keen to reconcile with Ms Suega with whom he continues to share an amicable relationship.
The Applicant has engaged in a prolonged period of introspection whilst incarcerated and held in immigration detention. Mr Tsolis believes the resultant insight into his difficulties and behaviours, combined with his commitment to seek treatment for his gambling, stands him in good stead to make significant changes to his psychosocial functioning.
Mr Tsolis recommends an individual psychotherapeutic program to address issues associated with depressive symptomology, impulse control and gambling relapse prevention. In his October 2021 report he recommended fortnightly treatment for at least 18 months, but gave evidence at the hearing that between 12 and 15 sessions would be suitable. During the sessions that he has had to date, Mr Tsolis found the Applicant well motivated and engaged and reports he responded positively to the process.
Conclusion as to the protection of the Australian community
The Applicant contends that the court acknowledged his prospects of rehabilitation were improved should he address his gambling addiction. I accept that the Applicant’s gambling addiction was central to his offending. I found Mr Tsolis to be a considered witness who provided an insightful account of how the Applicant’s mental health was related to his gambling addiction.
That the Applicant did not seek to address his compulsion to gamble after his first offence is of considerable concern when assessing the risk of further offending. That he continued to gamble - in spite of the impact on himself, Ms Suega and his son - and did not stop until his arrest in July 2019, indicates the strength of his compulsion.
I accept that the experience of being imprisoned and then having his visa cancelled has been salutary. He was unable to be with his family during his mother’s illness and passing. His conduct whilst in prison indicates a genuine desire to improve and not repeat the mistakes of the past. The Corrective Services reports in particular indicate his engagement and efforts to improve upon himself have been ongoing and meaningful.
Whilst Mr Tsolis has provided a credible explanation for the Applicant’s offending, he initially indicated the Applicant will require up to 18 months of regular treatment. I also note that his recovery is untested in the community, and the evidence suggests that his compulsion to gamble was powerful enough to drive a series of increasingly poor decisions over an extended period of time, without seeking help even when court ordered.
As such I am satisfied that the risk of the Applicant reoffending remains. The potential harm caused by further acts of criminal and other serious conduct committed by the Applicant may involve serious physical, financial and psychological harm to members of the Australian community.
I accept the Respondent’s contention that the harm caused by further offending motivated by financial gain is so serious that any likelihood that may be repeated is unacceptable. I also take into consideration that his offending, whilst limited, was of increasing seriousness, as reflected in the sentences imposed upon him.
For these reasons, I find that the protection of the Australian community weighs in favour of not revoking the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
This primary consideration is not relevant to this application and is afforded no weight.
PRIMARY CONSIDERATION 3 - BEST INTERESTS MINOR CHILDREN
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant is the father to a minor child, IG, who was born in August 2018. He also has a close relationship with his nephew and niece, who he spent time with regularly and treated as his own children.
The Applicant gave evidence that he had a very important role in the life of his son until his arrest in July 2019. He was working and providing for him, as well as providing paternal care. Until his arrest, the Applicant and Ms Suega had a strong relationship and lived together whilst raising IG.
The Applicant has been able to maintain contact with IG whilst incarcerated and in immigration detention through phone calls and visits. Though they are no longer together as a couple, Ms Suega and the Applicant maintain a strong relationship and a desire to raise IG together.
The Respondent concedes that the best interests of IG are that the Applicant remain in Australia. However, it is submitted that less weight should be afforded to this consideration as the Applicant will not necessarily play a positive role in the lives of IG and his niece and nephew given his history of dishonesty and related offending and his issues with gambling and financial management. Further, if he is removed to New Zealand, the Applicant can maintain contact with these minor children through electronic means and they can visit him in New Zealand.
It is also submitted by the Respondent that others are already fulfilling the parental role in relation to IG who lives with Ms Suega.
I take into account that the Applicant has an offer of full-time employment should he remain in the community which would enable him to contribute financially to IG’s welfare. I also take into account Ms Suega’s evidence that the Applicant is a loving and caring father who will provide her with significant emotional and financial support should his visa be reinstated. These considerations weigh in favour of revocation but are tempered by the evidence that his ability to provide financially for his child was previously undermined by his gambling.

Overall, I consider this primary consideration weighs heavily in favour of revoking the cancellation of his visa.
PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRLAIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
OTHER CONSIDERATIONS
I now turn to considering the other relevant considerations set out in the Direction.
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
The Applicant said that he has no family in New Zealand and expects that he would be stigmatised in New Zealand owing to having been deported from Australia. He claims these factors, combined with his low level of formal education would make it difficult for him to find employment and financially support himself in New Zealand.
I take into account that the Applicant has no employment history in New Zealand and with his immediate family living in Australia, he would not have their support. Nonetheless, he is a young man and who has proven adept at finding employment in the past.
Reintegration into New Zealand would be difficult for the Applicant but I do not consider the challenges would be insurmountable. He would have access to the same healthcare and social security as other New Zealand citizens, and can expect to access comparable treatment for his mental health and gambling addiction should he choose to continue treatment. I acknowledge that managing his mental health may be more challenging if he is isolated from his family, but he would be able to communicate with them through other means.
Overall, this consideration weighs in favour of revocation, but is afforded limited weight for the reasons set out above.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia since he was a child and given the period of time he has spent in Australia he is entitled to some weight under subparagraph 9.4.1(2) of the Direction.
The Applicant is close to his sister Siaa who has recently received a heart transplant. She is currently receiving treatment in hospital, but will require full time support and assistance attending medical appointments in the future. The Applicant’s late mother expressed a desire that he assist in caring for Siaa, and the Applicant committed to doing so.
The Applicant’s immediate family were present at the hearing and provided evidence in support of his application. They universally spoke of their love for the Applicant and desire to help him move on from his offending and be a good father.
Based on their evidence, there is no doubt that the Applicant is an important part of their large family and his permanent removal would have a significant impact on each of them, most notably his father and siblings. I am of the view that his removal at this time would be particularly distressing given the passing of his mother in November 2021.
The evidence provided strongly support a conclusion that the Applicant would be well placed to provide emotional and practical support for Siaa as she recovers from her heart transplant, as well as his father both financially and in managing his arthritis. Though Siaa has other siblings, unlike his brothers, the Applicant plans to live with Siaa.
Sabrina wishes to study but has placed her career on hold in order to enable her twin sister Selena to pursue her studies. She gave evidence that having the Applicant at home would be a considerable help to her and may enable her to pursue her studies earlier.
Ms Coulson works as a carer. She gave evidence that Siaa was primarily cared for by her mother until she became too ill to care for Siaa, after which time Ms Coulson assumed the role. However, Ms Coulson is unable to continue caring for Siaa as she has the competing demands of her own family and need to work. She expects that the Applicant will be of considerable assistance in caring for Siaa, particularly as she recovers from her heart transplant.
In addition to the family members detailed above, the Applicant has 10 uncles and aunts and 11 cousins in Australia, though there is little evidence before the Tribunal as to the Applicant’s ties to them.
Overall, I am satisfied that this consideration weighs strongly in favour of revoking the cancellation of the Applicant’s visa.
CONCLUSION
The Applicant has acknowledged his gambling addiction and demonstrated an understanding and some insight into the behaviour which led to his offending. His claims to have reformed are supported, but he had made such claims previously and his resolve not to gamble is yet to be tested in the community. The evidence supports a finding that the Applicant has come to appreciate that his addiction compelled him to prioritise gambling over his responsibilities, including his young son.
The attempted armed robbery offence in particular was very serious and would have been extremely traumatic to those he threatened. I have concluded that the nature of the Applicant’s offending is serious and weighs heavily against revoking the mandatory cancellation of his visa. The expectations of the Australian community also weigh against revocation.
In spite of the shortcomings resulting from his gambling, the Applicant’s claim to be a loving and caring father is unchallenged and the best interests of the Applicant’s minor child, as well as his niece and nephew, weigh heavily in favour of revocation.
The impediments to the Applicant’s removal weigh in favour of revocation but less so given his relative youth and proven ability to find and maintain work. I acknowledge that his anxiety and depression may be difficult to deal with in the absence of social and family networks, but he would be able to seek treatment in New Zealand.
The Applicant has extremely strong ties to the Australian community. His father and sisters require practical and emotional support should he be released into the community following a challenging period for their family. This consideration weighs heavily in favour of revocation.
On balance, I am satisfied that the totality of the evidence and considerations in Direction 90 support a finding there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 8 March 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Date(s) of hearing: 17 & 18 May 2022

Solicitor for the Applicant: Mr I Ehimudiamen, Lucky Iyare & Associates

Solicitor for the Respondent: Ms C Campbell, HWL Ebsworth Lawyers

[2022] AATA 1749

1 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	17 & 18 May 2022
Solicitor for the Applicant:	Mr I Ehimudiamen, Lucky Iyare & Associates
Solicitor for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers