SRYY and Minister for Home Affairs (Migration) - [2019] AATA 4054

SRYY and Minister for Home Affairs (Migration) [2019] AATA 4054 (27 September 2019)
Division:GENERAL DIVISION
File Number: 2019/4061
Re:SRYY
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:27 September 2019
Place:Sydney

The decision of the Respondent dated 4 July 2019 to refuse to revoke the Mandatory Visa Cancellation Decision made under the Migration Act 1958 (Cth) is affirmed.
................................[sgd]........................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) – where Applicant does not pass character test – whether there is another reason why the cancellation decision should be revoked – primary considerations and other considerations in accordance with Direction No. 79 – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 500, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Burton and Minister for Home Affairs [2018] AATA 1313
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
TGXY and Minister for Home Affairs [2019] AATA 757
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
27 September 2019

SRYY (the Applicant), a citizen of Fiji, was born in 1982.[1] He came to Australia with his parents and two older sisters in 1987 when he was five years old.[2] Prior to its cancellation, the Applicant held a Class WE Subclass 050 Bridging visa granted 23 April 2003.[3]
[1] Exhibit R1, G1, 2.
[2] Exhibit R1, G4, 30 and G18, 288
[3] Exhibit R3.
The Applicant has a history of criminal offending commencing in 1998 when he was 16 years old.[4] On 15 May 2018, he was convicted in the Liverpool Local Court and sentenced to four months imprisonment for Stalk/intimidate intend fear physical etc harm (domestic) and 12 months imprisonment on each count for breaching five s 12 good behaviour bonds.[5]
[4] Exhibit R1, G5, 37-45.
[5] Exhibit R1, G5, 38-39.
On 15 June 2018, the Department issued the Applicant with a Notice of Visa Cancellation (the Mandatory Visa Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date, the Applicant was serving a sentence of full-time imprisonment at Dawn de Loas Correctional Centre in New South Wales.
[6] Exhibit R1, G5, 38-39.
On 11 July 2018, the Applicant (by his then representative) made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[7] On 3 September 2018, 15 November 2018 and 6 June 2019 the Applicant’s representative provided further supporting documents and submissions.[8]
[7] Exhibit R1, G10, 91.
[8] Exhibit R1, G12, G13, G16.
On 4 July 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[9]
[9] Exhibit R1, G3, 19.
On 8 July 2019, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.[10]
[10] Exhibit R1, G1.
The matter was heard by the Tribunal at a hearing in Sydney on 12 and 13 September 2019. The Applicant attended the hearing in person and was self-represented.
The following persons gave oral evidence at the hearing:
·the Applicant;
·GRDS (the Applicant’s mother).
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 28 August 2019;
·G documents (G1 to G19 pages 1 – 321) – Exhibit R1;
·Summons material (TB1 to TB6 pages 1 –258) – Exhibit R2;
·A bundle of documents tendered by the Respondent at the hearing in relation to the Applicant’s visa history – Exhibit R3;
·Decision of the Refugee Review Tribunal in relation to the Applicant’s Father – Exhibit R4;
·Letter from the Department relating to humanitarian consideration under section 417 of the Act – Exhibit R5;
·Department of Foreign Affairs and Trade report of Country Information in relation to Fiji – Exhibit R6; and
·Applicant’s statement – Exhibit A1.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Subsection 501CA(4) provides:
(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 that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paras 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The Other considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties [to Australia];
(c)       Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.” Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary consideration may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[11] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
a)whether the Applicant passes the character test; and
b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Arrival in Australia, protection claims and visa status
The Applicant arrived in Australia with his parents and two sisters in October 1987 on a transit visa.[13] On 23 August 1990 the Applicant’s father applied to the Department of Immigration and Multicultural Affairs (‘the Department’) for refugee status. He claimed that the Fijian Constitution discriminated against Fijian Indians and that Fijians of Indian origin do not have equal rights. He further claimed that he was harassed during his work as a bus driver and he was forced to drive trucks full of sugar. His children were frightened to go to school because of constant intimidation by native Fijians. Their home was broken into by Fijians and property was stolen. He claimed also that he feared being arrested if he returned to Fiji because he was a member of the Fijian Labour Party.[14] The protection visa application was refused by the Department on 9 July 1994 and this decision was affirmed on review by the Refugee Review Tribunal (‘RRT’) on 21 March 1995.[15]
[13] Exhibit R3.
[14] Exhibit R4, p3.
[15] Ibid.
On 8 April 1995, the Applicant, his father, mother, and sisters were notified that their case had been considered under the Ministerial guidelines for stay in Australia on Humanitarian Grounds, and it was found that their case did not satisfy the requirements for consideration of the exercise of the Minister’s discretion under section 417(1) of the Migration Act.[16]
[16] Exhibit R5.
On 20 April 1995, the Applicant’s mother made protection visa claims in an application lodged with the Department. The Applicant also made claims within this application. The Applicant claimed that he had been told about acts of harassment and discrimination that had caused his parents to leave Fiji and he had heard that there was a high level of violent crime and he feared becoming a victim.
On 16 March 1996, a delegate refused the grant of protection visas to the Applicant and his mother. They applied to the RRT for review of the decisions on 10 April 1996. Attempts by the RRT to make contact with the Applicant and his mother, including the offer of a hearing date, were unsuccessful as the correspondence sent to their given address was returned. In a decision dated 21 February 1997, the RRT affirmed the decision of the delegate, noting that it was satisfied that the opportunity for an oral hearing had been offered to the Applicant and his mother, and the lack of a hearing rested with them. The RRT found that the Applicant, his mother and other members of the family unit were not persons to whom Australia has protection obligations under the Refugee Convention.
During his oral evidence at the Tribunal hearing, the Applicant was asked about the statement he made in the form he completed to request revocation of the cancellation of his visa. He claimed that if he returns to Fiji his life may be in danger because he and his family flew to Australia during the civil war.[17] When questioned about this in cross-examination, the Applicant agreed that the civil war in Fiji is now over. He was asked by the Tribunal about, but did not provide, any further claims or evidence in relation to fears of harm he has on return to Fiji.
[17] Exhibit R1, G10, 101.
The Respondent provided to the Tribunal information extracted from a database of the Department in relation to the visas held by the Applicant since his arrival in Australia on 25 October 1987.[18] From 1 September 1994 until 15 June 2018, the Applicant held a series of bridging visas, most recently a Class WE Subclass 050 Bridging visa granted 23 April 2003. For the 32 years of his residency in Australia, the Applicant has been the holder of a temporary visa. During this period, the Applicant applied for a Combined Resolution of Status (UH850/BL851) visa on 31 March 1998 which was refused. On 17 March 2000 the Applicant applied for a Certain Unlawful Non-Citizen visa (AG 833). In a letter dated 22 August 2002 the Department informed the Applicant’s representative that his application may be refused on character grounds under section 501(1) of the Migration Act. On 7 July 2006, a delegate of the Minister decided not to refuse to grant the Applicant the visa, but decided that the Applicant should be warned regarding his conduct. The letter stated:
Mr [SRYY] is now warned that any further conduct bringing him within the scope of s.501 of the Act may lead to the refusal of any undetermined visa application or the cancellation of any visa granted to him. Disregard of this warning will weigh heavily against Mr [SRYY] if the Minister or his or her delegate considers the question of his character again.[19]
[18] Exhibit R3.
[19] Exhibit R1, G14, 260.
Schooling and work history
The Applicant told the Tribunal he attended school in Australia until year 10 and that he enjoyed school and was a good student.[20] He provided a number of progress and pupil reports from his primary school and high school.[21]
[20] Applicant’s statement p1.
[21] Exhibit R1, G10, 171-196.

After he left school the Applicant trained in accounting and then went to work with his father cutting sheets of metal.[22] Between 2005 and 2007 the Applicant worked as a trainee financial adviser. From 2007 to 2008 he was a customer service manager/sales representative. He was later employed between 2013 and 2015 as a full-time cook/manager at Nando’s Restaurant. In 2017 he was employed as a car detailer for a period of approximately 11 months. He worked for a number of car dealerships including for Honda, Audi and Toyota. In 2018 he worked as a car detailer for panel and smash repairs for about six weeks until he was incarcerated.[23] The Applicant provided a number of documents relating to his various employment roles.[24]
[22] Applicant’s statement p1.
[23] Exhibit R1, G10, 111.
[24] Exhibit R1, G10, 129-150.
The Applicant told the Tribunal that the reason why he had periods of unemployment was because he did not have permanent residency. As a consequence of his visa status he could not access Medicare, and if he did not have money he could not see a doctor, including for his drug problem. He also was not entitled to receive unemployment benefits nor get assistance from Centrelink and employment agencies to help him find work.
Drug habit
The Applicant told the Tribunal that he has had a drug problem since he was young and has struggled to get off drugs for a long time. He started taking cannabis at the age of 13, heroin at age 14, cocaine at age 15, and ice and speed at age 18.[25] He stopped using marijuana as it makes him paranoid. He took heroin until he was about 21 years old and then he stopped for about two years. He then started taking Speed and then amphetamines (Ice) and heroin on and off. At one stage he was spending $5,000-10,000 per night on cocaine.
[25] Applicant’s statement p1.
When he was young he attended counselling for his drug use, including his parents taking him to the local mosque when he was about 16 years old.
In his oral evidence, the Applicant said that his drug habit has been the cause of all his offending. The Applicant told the Tribunal the last time he took drugs was when he was in gaol, where he took marijuana and ice a couple of times.
Criminal History
A Nationally Coordinated Criminal History Check dated 15 March 2019[26] issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia.
[26] Exhibit R1, G5, 37-45.
In his representations to the Department and the Tribunal, the Applicant did not dispute the charges and convictions in the Nationally Coordinated Criminal History Check regarding his criminal convictions and sentences.
Early offending
In January 2000 the Applicant was charged with Shoplifting to the value of less than $2000 and fined $150. He does not recall the circumstances of this charge. He was convicted of two counts of Larceny to the value of less than $2000 in June 2000. He does not recall the offence, but said that if he did not have any money or somewhere to stay he would steal things. He would shoplift anything he could sell, for example razor blades, clothing and perfume. He only stole from shops and did not break into houses. He would sell these items to fund his drug habit and buy food and cigarettes.
In January 2001 the Applicant was charged with Break and enter building. He was convicted on 4 April 2001 and sentenced to periodic detention for 16 months with a non-parole period of 12 months. He said that it was likely that he broke into his parents’ house. He was on heroin after he had relapsed following the Naltrexone program he had undertaken. In September 2001, he was convicted of Larceny and was imprisoned for 12 months. He could not recall the circumstances of this offence. He was released from gaol on 16 August 2002.
In July 2003 he was convicted of driving under the influence of alcohol and sentenced to a good behaviour bond of 12 months. In February 2004 he was convicted of Fail or refuse to comply with direction – buy drug. He explained that he was outside a police station waiting to speak to a police officer. He was speaking to a friend and was asked by an officer to move on, and when he refused to do so he was charged. He was convicted in March 2004 for being suspected of holding stolen goods, and for shoplifting in April 2004 and was sentenced to imprisonment for nine months. In September 2004, he was convicted of failing to hold a valid ticket for travel. He admitted that he would habitually travel on public transport without a ticket.
Common assault offences
On 29 August 2007, the Applicant was convicted of Common assault and Assault occasioning actual bodily harm and fined and give an 18 month good behaviour bond. He told the Tribunal this offence arose from an argument with his former partner, the mother of his son. He said that they were together for a couple of years and his son was born in March 2008. He did not recall what the argument was about. He said he did not physically hurt his former partner during the assault, rather she hurt herself when she smashed the window of his car. He said he went to hug her and she pulled away and fell down and bruised her leg. He agreed it was his fault and that he was using ice on a daily basis in the six month period leading up to the assault which contributed to the offences.
On 7 January 2008 he was again convicted of Common assault for an offence he committed on 1 November 2007 and was sentenced to imprisonment for six months. At this time, he also was convicted for contravening a prohibition/restriction order (domestic), fail to appear in accordance with a bail undertaking, and called up for the assault occasioning bodily harm good behaviour bond. For these offences he was sentenced to imprisonment for nine months, two months (concurrent) and eight months respectively.
The police facts sheet for the offence refers to an abusive SMS message he sent his former partner who at the time was five months pregnant.[27] He said he does not recall this message but he agreed that he did breach an AVO in the months before his son was born. He said he and his former partner were having a lot of problems and she would often call the police. She alleged that he attempted to strangle her.[28] The police and an ambulance were called and she stopped breathing while in the ambulance. The Applicant denied that he attempted to strangle his former partner. He unsuccessfully appealed the severity of this conviction and the conviction was confirmed, and he served his sentence from January to September 2008.
[27] Exhibit R2, TB3, 79.
[28] Exhibit R2, TB3, 79.
Larceny and supply offences
The Applicant was again convicted of Larceny on 14 July 2009 for an offence he committed on 19 March 2009 when he stole 12 packs of men’s razors from a Coles supermarket. He said he stole these to sell as he needed money for his drug habit which at the time was ice or heroin. At the time he was spending about $300 plus per day on drugs. He funded his habit by selling drugs and shoplifting.
On 23 November 2010 he was convicted of Supply prohibited drugs on an ongoing basis and was sentenced to a term of imprisonment of three years and nine months. According to the sentencing remarks, the Applicant pleaded guilty to supplying heroin and cocaine on three or more occasions between 20 October 2009 and 1 November 2009.[29] At the time he committed the offence, he was subject to a s 12 bond for an offence of larceny.[30] He told the Tribunal that the charge related to the supply of heroin and cocaine. At the time he was the subject of a good behaviour bond. He said he supplied drugs in order to support his drug habit.
[29] Exhibit R1, G9, 69.
[30] Exhibit R1, G9, 71.
Stalk/intimidate and resist arrest offences
On 3 May 2014 the Applicant was at his parents’ home and he asked his father to take him for a drive. When he refused to do so he went into the garage and when his father entered the garage the Applicant was holding a meat cleaver. He was waving the knife around threatening to cut everyone. The Applicant agreed he was ‘in a hysterical place’. The police were called and when they arrived they asked him to put down the knife but he refused to do so. When they attempted to arrest him he resisted.[31] He said he did not resist arrest but struggled with them and ‘got freaked out’ because he was on ice. At the time he had ‘lost his mind’ and admitted that if he had not been locked up he probably would have ‘ended up killing someone.’ On 23 June 2014 he was given an eight month suspended sentence on entering into an eight month good behaviour bond for the offence Stalk/intimidate intend fear physical harm.
[31] Exhibit R2, TB3, 70-71.
The Applicant said that although he had completed an Opioid Treatment Program in April 2014, at the time he was having issues with his ex-fiancée and he got back on the ice and this caused him to become paranoid. He started verbally abusing people on the street and was thinking that people were following him and doing things to make him get off ice.
In August 2014 he was at his parents’ home and he asked his mother for $100. When she refused, he threatened to smash the house and kill her.[32] He explained that his parents would hold onto his money so that he would not use it for drugs, and when they would not give it back to him he would become angry. He agreed that his mother would have been scared but said he has never hurt her, although he has verbally assaulted her. The police were called and he was charged for resisting arrest. On 19 August 2014 an AVO was issued against the Applicant.
[32] Exhibit R2, TB3, 69.
On 17 September 2014, police were called to the Applicant’s parents’ house.[33] His mother told them he had been threatening to hurt her with a 40 centimetre bladed carving knife. He was charged with resisting arrest. At the time he was the subject of both an AVO and a good behaviour bond. On 20 October 2014 he was sentenced to imprisonment for four months for Resist officer in execution of duty and for eight months in relation to a call up Stalk/intimidate intend fear physical harm.
[33] Exhibit R2, TB3, 68.
On 14 June 2016 the Applicant was convicted of Destroy or damage property.[34] This offence involved him smashing a TV remote control at this parents’ house after his mother asked him to turn off the TV as she was praying in the lounge room. His mother called the police and he was charged and an AVO was issued protecting his parents.
[34] Exhibit R2, TB2, 33-36, TB3, 66-67.
On 9 September 2016 the Applicant was convicted of Contravene prohibition/restriction in order. The Applicant went to his parents’ house and had an argument with his mother and the police were called. He returned the following day at 1.15am and his parents did not answer the door. He returned at 7.50am and the police were called.[35] At the time of the offence he was the subject of the AVO and he was prohibited from going within 100 metres of his parents’ house. He was charged with breach of the AVO.[36]
[35] Exhibit R2, TB3, 64-65.
[36] Exhibit R2, TB2 38-41.
In December 2016 his parents’ attempted unsuccessfully to have the AVO amended so he could return to live with them.
On 18 January 2018, the Applicant went to his parents’ house to take his Playstation.[37] He had an argument with his mother because she did not want him to take it as she was worried he would sell it for drugs. The police report stated that he pushed his mother in the chest, which the Applicant denied. He then went outside and smashed a glass table on the patio. The police attended and he was charged with four offences. For these offences he was sentenced to 12 months imprisonment suspended upon entering into a 12 month good behaviour bond. The Applicant was convicted in the Liverpool Local Court for the offences Stalk/intimidate intend fear physical etc harm (domestic), destroy or damage property, contravene prohibition/restriction in avo (domestic) and common assault (dv).[38] At the time he was the subject of an AVO protecting his mother and this was extended for a further two years. In his sentencing remarks dated 19 January 2018, Magistrate McAnulty informed the Applicant that if he breaches the AVO by an act of violence he can expect to go back to gaol. He also told him he needed to give up drugs.[39]
[37] Exhibit R2, TB3, 58-60.
[38] Exhibit R2, TB2, 44-46.
[39] Exhibit R1, G8, 67.
On 5 February 2018 the Applicant was charged with driving whilst his licence was suspended.[40] He told the Tribunal he did not know at the time that it was suspended.
[40] Exhibit R2, TB3, 58.
On 17 March 2018 the Applicant had a verbal argument with his mother when she refused to give him money and her mobile phone. The following day he approached his mother again and demanded money and her phone. She was outside hanging washing on the line and he picked up a chair and threw it against a Gyprock wall creating a large hole. He told the Tribunal he was sitting on the chair and leaned back and fell onto the wall. The police were called and he was charged.[41] In a statement his mother provided to the police she said ‘I am very scared. I don’t know what he is going to do in the future.’[42] The Applicant said his mother is scared not of him but of what she is going to do about him using drugs. He told the Tribunal that his behaviour upsets his mother and she often would cry.[43]
[41] Exhibit R2, TB3, 57-58.
[42] Exhibit R2, TB3, 57.
[43] Applicant’s statement p2.
The Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic) on 21 November 2018.[44] That offence was in breach of five s 12 bonds each of which were for a 12 month period, meaning that the s 12 bonds were revoked and the Applicant was sentenced to 12 months’ imprisonment.[45] The sentencing judge on appeal in relation to the most recent offences found that there was insufficient evidence for the Applicant to be diverted for mental health treatment as opposed to sentencing according to law.[46] Her Honour noted that the mental health report did not consider there to be any accurate report of paranoid delusional belief.[47]
[44] Exhibit R1, G5, 37-38.
[45] Exhibit R1, G6, 53, G7, 59.
[46] Exhibit R1, G6, 52-53.
[47] Exhibit R1, G6, 52.
Drug programs, treatment and counselling
When he turned 18 years old the Applicant entered into a home detox program. This was followed by a Naltrexone program which he did three times. He was taking tablets and had an implant for six months. This helped him to get off heroin for a while but he relapsed. He told the Tribunal he was not taking drugs (heroin) from 2007 for about two years and then in 2009 he started taking ice and then heroin again. In December 2009 he was placed in a methadone program. He did not stay in the program as the methadone made him ‘go stupid’.
In July 2013 he started an opiate replacement therapy program with buprenorphine. In September 2013 he started a further program of the same opiate treatment. He completed this program successfully in April 2014 and has not taken heroin since this time. However he had some personal issues and threatened suicide and then started ice again. At one stage he did not leave the house for six months. He was in a bad situation and realised that he could have taken someone’s life if he didn’t get off ice and he tried to stop using it.[48]
[48] Applicant’s statement p2.
In September 2016 he attended an appointment at Liverpool Community Corrections and it was suggested he undertake counselling. He said he would not do group counselling but was willing to do one-on-one counselling.
The Applicant told the Tribunal that unless he accepts he has a drug problem then he will not stop. No one can force him to stop taking drugs. When he has attended counselling it caused him stress and this made him want to use drugs again. He explained that he has wanted to stop, but a drug habit is a disease and you cannot get rid of it entirely.[49]
[49] Applicant’s statement p2.
In April 2017 he attended a NSW Community Corrections interview and it was suggested that he undertake some relapse prevention counselling. He did not agree to this initially but did so when he was told he could pay back his State debt fines by doing so.[50]
[50] Exhibit R1, G12, 245.
In May 2018, the Applicant was offered an opportunity to enter the ballot for the Drug Court programme (including residential rehabilitation) and declined it.[51]
[51] Exhibit R1, G7, 64.
The Applicant said that he tried to get into an opiate treatment program in gaol and in immigration detention but he was told he did not meet the guidelines and was ineligible as his urine has been clean. A methadone program has been offered to him but he has refused to do this as it adversely affects him. He wants to get onto buprenorphine as this has helped him in the past.
The Applicant told the Tribunal he has seen a mental health nurse and a psychiatrist who put him on two medications but he has stopped taking them and he has been ‘all right lately’.
Son born March 2008
The Applicant was in gaol when his son was born in March 2008 and he is 11 years old.[52] When he was released from gaol his son was six months old. He has never met his son and has only seen two pictures of him that his former partner sent him. He has tried everything to see his son, including contacting his former partner’s mother, brother and friends, but he cannot find his former partner and she does not want to be found.[53] He is worried that if he were to contact her she would contact the police as she is scared of him and is concerned that he will take his son. He hopes that when his son is old enough he will contact the Applicant himself. [54]
[52] Applicant’s statement p2.
[53] Applicant’s statement p2.
[54] Applicant’s statement p2.
He told the Tribunal that he gave up on seeing his son because Legal Aid would not help him. He was told that because he has had AVOs that it would be very hard for him to be successful in gaining access to his son. He wanted to see another lawyer but he was told that he needed about $10,000 to $20,000 and he does not have the money.[55]
[55] Applicant’s statement p2.
The Applicant said he understood that he would need to give up his drug habit if he were to gain visitation rights to his son. He knows he is a drug addict and that it is better that his son remains with his mother as he has a better life with her. He does not believe that he would be a danger to his son. His niece and nephew have grown up with him around and he has never hurt them, and he has never taken drugs in front of them. They understand that drugs are bad as they have seen what has happened to him.
The Applicant was asked whether he currently pays child support for his son and he said that he does not.
Time in prison and immigration detention
On 10 May 2018, when staff at the John Morony Correctional Centre were conducting searches, the Applicant shouted verbal abuse at them.[56] He denied that he did this. On 25 June 2018 he was recorded as not following or listening to directions in the plating room, and when he was told to return to his position he refused to do so and yelled abuse. A similar incident was recorded on 24 July 2018.[57] The Applicant told the Tribunal he worked in the plating area and then moved to the prep area where meals are cooked and prepared.
[56] Exhibit R1, G12, 253, 255-256; Exhibit R2, TB4, 177-178.
[57] Exhibit R1, G12, 253, 255-256; Exhibit R2, TB4, 177-178.
The Applicant repeatedly failed prescribed urine tests while in custody,[58] and has continued to use drugs whilst in immigration detention.[59] He failed to engage meaningfully in drug and alcohol counselling whilst in immigration detention.[60]
[58] Exhibit R1 G9, 75; Exhibit R2, TB4, 136-175, 192-193.
[59] Exhibit R2, TB5, 196, 205, 210, 216-217, 220, 222-223, 226, 230, 237, 247.
[60] Exhibit R2, TB5, 196, 198, 200, 205, 225, 232, 238.
On 10 October 2018 when the Applicant was at Silverwater Parole Unit it was recorded that the Applicant became angry and abusive and said he would not participate in any rehabilitation programs.[61]
[61] Exhibit R2, TB4, 178.
Remorse for offending

In his statement the Applicant wrote:
I can understand why you guys say I am a danger to the community and my family. I am sorry for everything I have done. I am sorry for hurting my mum and dad, sorry that I am a drug addict … I understand now how serious this has become, I am at the point of getting thrown out of this country which I call home, this country where I grew up and where I have spent all my life, a country I love with all my heart.
…
I am truly sorry for my mistake, me doing crime, taking drugs and having to get to where I am. I have stopped drugs numerous times and have also failed numerous times.[62]
[62] Applicant’s statement p3.
Programs and certificates completed
In August 2011, when the Applicant was in Bathurst Correctional Centre, he completed a SMART program in order to try to overcome his drug abuse and criminal activity.[63] He explained that the program teaches motivation and how to understand the stages of recovery from drugs. He also completed a Health Survival Program in February 2011.[64]
[63] Exhibit R1, G10, 197.
[64] Exhibit R1, G10, 159.
The Applicant completed the following TAFE courses while in gaol:
·July 2011 - Certificate III in Transport and Logistics (Road Transport);
·May 2011 – Certificate II in Hospitality (Kitchen Operations);
·July 2011 – Statement of Attainment in First Aid;
·August 2011 – Approved Course in the Responsible Conduct of Gambling.[65]
[65] Exhibit R1, G10, 151-158.
Plans for the future
The Applicant told the Tribunal that if his visa is reinstated, he will live with his mother. His father died in early September 2019. He said his mother would not be in danger, as he would never hurt her although they do argue.
The Applicant was asked what work he would do if he returned to the community. He said he did not have difficulty getting a job and that he would like to do car detailing. He also would like to work in sales as he was good at it.
Impediments on return to Fiji
The Applicant told the Tribunal that he thinks he has family in Fiji and he may be able to find them but he does not know if they will help him. He has some Facebook friends who live in Fiji. He does not have much understanding of the country and he has not travelled back there since he arrived in Australia. He knows that the lifestyle is different and it might affect his depression.
The Applicant told the Tribunal that it is ‘a bad situation’ in Fiji in relation to drugs and he does not know if he will be able to receive any drug treatment. He understands that there is mental health support available in Fiji. He thinks it will be easy for him to find a job because he has good English and he could find work in the tourism industry.
The Tribunal asked the Applicant whether he had any concerns about returning to Fiji in terms of his physical safety from the Government or other groups. He said there were some issues in the past, and when his family came here there were problems for them if they had returned to Fiji.
Evidence of Applicant’s mother – GRDS
The witness said she lives alone but is close to her two daughters and their families. She has some health problems and sees her GP every three or six months.
She told the Tribunal her son was good when he was young but he started taking drugs when he was about 12 or 13 years old. When he takes drugs he is ‘bad’ but otherwise he is ‘very good’ and has never harmed anyone. He sometimes talks loudly to her but he has never hit her. She agreed that he did once yell at her while holding a knife and that he did break an outside table and damage a wall. She told the Tribunal that his offending is because of his drug use. She explained that she has tried to help him by taking him to the doctors, to the mosque and to rehabilitation programs, but none of these have helped. She agreed that she has called the police on a number of occasions and AVOs had been issued against him for her protection. She attempted to have these lifted as she needed the Applicant to return home as she needed help when her husband was sick.
The witness told the Tribunal that if the Applicant has his visa reinstated he will live with her as she has a mortgage and needs help to pay it off, as she does not work but does receive a pension as she is a permanent resident. She does not have any concerns about the Applicant living with her as she believes he has changed now that his father has died, and he will have the responsibility to help and support her.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 15 May 2018 the Applicant was convicted in the Liverpool Local Court and sentenced to four months’ imprisonment for Stalk/intimidate intend fear physical etc harm (domestic), and 12 months’ imprisonment on each count for breaching five s 12 good behaviour bonds. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a), as he has “a substantial criminal record” as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act, the Applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution, for an offence against a law of the State of New South Wales.
For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
Is there another reason why the Mandatory Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned , or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(i)…
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality and the risk posed should he commit further offences, the Tribunal notes that the Applicant has a lengthy criminal history dating back to his first offence committed in 1998 at age 16. His offending is closely linked to his drug abuse, commencing with drug possession and property crimes, but then moving to common assault, assault occasioning actual bodily harm and a number of breaches of AVOs.
Having regard to paragraphs 13.1.1(1)(a) and (b) of the Direction, the Tribunal notes that the Applicant’s criminal record includes a history of domestic violence and aggression against his parents and his former partner and mother of his son.[66] These offences, although they did not result in serious physical harm to the victims, were violent and committed against vulnerable people. The Applicants were elderly at the time of his offences against them, and his partner was five months’ pregnant when he assaulted her in November 2007. The Tribunal finds that the Applicant’s crimes, particularly those involving domestic violence against his mother and former partner, were very serious. It makes this finding having regard to paragraph 13.1.1(1)(c) and the sentences imposed for these offences, which do not detract from the serious nature of these crimes of domestic violence.
[66] Exhibit R2, TB3, 57, 60, 67-69, 71, 78-79.
Relevant to the seriousness of the Applicant’s conduct is that he has been sentenced to good behaviour bonds, periodic detention, suspended sentences, and terms of imprisonment. Having regard to paragraph 13.1.1(1)(d)) of the Direction the Tribunal finds that the penalties imposed by the courts for these offences, particularly the terms of imprisonment, indicate the seriousness of the Applicant’s criminal offending. In making this finding, the Tribunal notes that custodial sentences are imposed as a last resort.
In considering the seriousness of the Applicant’s conduct to date, the Tribunal has had regard to the frequency of the Applicant’s offending and its cumulative effect as required by paragraphs 13.1.1(1)(e) and (f). The Applicant’s offending has been consistent over a number of years since he was a teenager. He has continually breached AVOs and good behavior bonds that have been imposed upon him, and continued to offend after terms of imprisonment. The Tribunal finds that the Applicant’s criminal offending demonstrates a sustained pattern of offences involving aggression and violence, and their cumulative effect indicates the seriousness of his conduct.
Having regard to paragraph 13.1.1(h), the Tribunal notes that the evidence before it is that the Applicant was given a formal warning by the Department in July 2006 about the consequences of further offending on his immigration status.[67] This warning, which the Applicant did not heed, is a further indication of the seriousness of the Applicant’s offending.
[67] Exhibit R1, G14, 260.
On the basis of the evidence before it and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct has been consistent over many years, has been violent and directed against vulnerable people, and is therefore very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of his family members and those who provided letters of support.[68]
[68] Exhibit R1, G11, 220.
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2, the Tribunal finds that any future re-offending by the Applicant is likely to involve physical and psychological harm to members of the Australian community, including the Applicant’s mother. The Applicant’s evidence and that of his mother is that when he is using drugs he becomes aggravated and frustrated, and presents a danger to those around him. His evidence to the Tribunal was that when he is in this state he has the potential to take a life.
In relation to the risk of the Applicant re-offending, as the vast majority of the Applicant’s crimes were committed when he was using drugs, the degree of likelihood he will continue his criminal offending will depend on whether he can cease taking drugs.[69] In making an assessment of the prospects of the Applicant continuing his drug-taking and it fuelling his criminal offending, the Tribunal has had regard to the evidence before it of the Applicant’s history of drug abuse, and his attempts to take the steps necessary to address his drug addiction.
[69] Exhibit R1, G9, 82.
The evidence before the Tribunal is that Applicant began using cannabis at age 12 and heroin at age 13.[70] His drug taking continued throughout his teenage years and into his adult life and there have been only limited periods when he has been drug free. He has had repeated engagement with counsellors, doctors, rehabilitation and the local Mosque for treatment for his drug abuse,[71] but he has relapsed and subsequently reoffended.
[70] Exhibit R1, G8, 66.
[71] Exhibit R1, G10, 92, 197-198, G12, 228; Exhibit R2, TB4, 83, 85, 87-88, 90, 94, 112-114, 124-125, TB6, 258.
The Applicant is well aware of the connection between his drug abuse and his criminal offending and has acknowledged this on numerous occasions,[72] including in his oral evidence.[73] Whereas the Applicant has successfully undertaken at least one opiate replacement therapy program with buprenorphine, he subsequently relapsed into drug use after being discharged from supervision.[74] In November 2010, the Applicant informed the sentencing judge that he understood that he had to stay off drugs if he wanted to gain access to his son.[75] The Applicant’s evidence is that he is fully aware that he will be unable to gain access to his son so long as he is a drug addict, yet he has not taken the steps he needs to address his addiction which has persisted now for more than two decades.
[72] Exhibit R2, TB4, 83.
[73] Exhibit R2, TB4, 83.
[74] Exhibit R1, G8, 66.
[75] Exhibit R1, G9, 74.
The impact on the Applicant’s parents, particularly his mother for whom he cares deeply, of his drug addiction is also well known to him, and he is aware that she is concerned and afraid of the effect of his drug taking on his behaviour. Despite this, the Applicant has not been able to prevent himself from relapsing shortly after successfully completing drug treatment programs.
The Applicant has been offered opportunities for counselling and drug treatment programs, including during his time in gaol and immigration detention. Most recently, the Applicant was invited to participate in a methadone program, an opportunity he declined. He is only willing to undergo opiate replacement therapy with buprenorphine, but he has been told he is ineligible for such a program. He has repeatedly failed prescribed urine tests while in custody,[76] and his evidence is that he has continued to use drugs whilst in gaol and in immigration detention.[77]
[76] Exhibit R1, G9, 75.
[77] Exhibit R2, TB5, 196, 205, 210, 216-217, 220, 222-223, 226, 230, 237, 247.
The evidence of the Applicant’s relatives, particularly his mother, is that they will provide the Applicant with assistance and support upon his release, including providing him with accommodation. The Applicant’s evidence is that upon release he will find work and be able to support himself and his mother. The Tribunal finds that while family support and employment is essential to the Applicant remaining drug free, it is not sufficient. The Applicant has had the benefit of family support and paid employment in the past but has continued to take drugs and offend. There is no evidence before the Tribunal that the Applicant has arranged or is seeking the professional support he will need to ensure he does not resume his drug habit. In the absence of evidence that the Applicant will take steps to ensure he has counselling for his drug habit following his release, the Tribunal cannot be satisfied that the Applicant will not resume drug use which will greatly increase the likelihood he will engage in further criminal activity and cause harm to others.
Having regard to the evidence before it, the Tribunal is not satisfied that the Applicant has the support or commitment he needs to prevent him from resuming his drug habit that has to date fuelled his violent and aggressive criminal offending. The Applicant has a track record of relapse into drug addiction upon release from gaol leading to repeat offending and further periods of imprisonment. The Tribunal cannot therefore be satisfied that the Applicant will not resume drug use upon release into the community, and therefore finds that there is a not insubstantial risk that the Applicant will re-offend. Further, given the nature and seriousness of the Applicant’s offending, even a minor risk of similar re-offending is unacceptable.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the middle to high end of the scale.
In making this finding, the Tribunal has been informed by Principle 5 which provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The evidence before the Tribunal is that the Applicant came to Australia at the age of five and that he has spent the vast majority of life in this country, including undertaking his schooling here and working in a range of employment roles.
The length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time.
However, the Tribunal notes that the Applicant commenced criminal activity in Australia when he was aged 16. The Applicant has been resident in Australia for more than 30 years, 20 years of which he has been involved in criminal offending that has caused harm to individuals. Accordingly, the Tribunal finds that the level of tolerance for the Applicant’s behaviour is diminished by the period of time he has been engaged in criminal activity during his residency in Australia.

For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
In considering the best interests of the child, paragraph 13.2(4) provides:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Having regard to the factors outlined in paragraph 13.2(4), the evidence before the Tribunal is that the Applicant has a son aged 11 years (born March 2008) who is an Australian citizen and resides with his mother, the Applicant’s former partner.[78] The Applicant has never seen or spoken to his son, and he does not know where he and his mother live. He has attempted to obtain legal assistance to contact his son, but he cannot obtain legal aid and cannot afford a lawyer.[79] There is no evidence to indicate that he has taken any formal steps to gain access or custody of his son.[80]
[78] Exhibit R1, G10, 107.
[79] Exhibit R1, G10, 108.
[80] Exhibit R1, G12, 227, 245; Exhibit R2, TB5, 250.
Having regard to the guidance in paragraph 13.2(4)(a) of the Direction, in circumstances where the Applicant does not have an existing relationship with his son, and has not played an active role in his life as a parent or provider, the Tribunal finds that limited weight should be given to this Primary Consideration.
The Applicant provided two Child Support Assessments indicating how much child support he is required to provide for his son.[81] His case is currently registered as private collect, that is, the Applicant is required to make payments directly to the mother of his son.[82] However, the Applicant told the Tribunal he has not paid any child support for his son, and he does not know where he and his former partner are living. The Tribunal finds that the Applicant does not have a parental role with respect to his son, and he does not provide any financial or other material support to him.
[81] Exhibit R1, G12, 222-226.
[82] Ibid, 222.
In relation to the factors in paragraph 13.2.4(b), the evidence before the Tribunal is that there is a history of domestic violence by the Applicant against his son’s mother when they were together as a couple, including two incidents in 2007. The Applicant threatened and assaulted his former partner at a time when there was an AVO in place for her protection, and when she was pregnant with their son. In his evidence, the Applicant admitted that his former partner remains scared of him, and it is for this reason that she has not permitted him to have contact with his son or with her. In light of this evidence, the Tribunal cannot be satisfied that the Applicant would play a positive parenting role in the future for his son, even if he were able to obtain access to him.
Having regard to paragraphs 13.2(4)(c), 13.2(4)(d) and 13.2(3)(f), there is no evidence as to the impact of the Applicant’s history of criminal offending on his son, or the impact the separation from his father has had on him, nor is there any evidence of the Applicant’s son’s views as to how he would be affected by the Applicant’s removal from Australia. The fact that the Applicant has never met his son means that his criminal offending is unlikely to have had a negative impact on him and he would be unaffected by his removal. Accordingly, the considerations in these sub-paragraphs are of limited relevance in the Applicant’s circumstances.
Having regard to paragraph 13.2.4(e) of the Direction, the evidence before the Tribunal is that the Applicant’s son resides with his mother and she plays the primary parental role in his life, including by providing him with emotional and financial support and attending to his daily needs. The Applicant has no parental role in his son’s life and is unlikely to do so if he remains in Australia.
Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that this Primary Consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it would be in the Applicant’s son’s best interests to have his father in his life. However limited weight can be attached to this Consideration in circumstances in which the Applicant does not have, and never has had, a relationship with his son, and is unlikely to do so in future given his history of drug abuse and criminal offending, including domestic violence against the mother of his son.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) states:
1)The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Justice Mortimer observed in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Justice Bromwich said at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ... The Tribunal was required to give effect to those norms which is precisely what it did.
In recent months, the Federal Court has delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
FYBR is authority in support of what has been termed the ‘narrow’ approach[83] to the determination of the expectations of the Australian community. As observed by Justice Perry:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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 Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases ...[84]
[83] DKXY at [22].
[84] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Justice Griffiths in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a)the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b)(b) so must all other circumstances which are relevant in a particular case.[85]
[85] at [122].
The Tribunal notes that in TGXY and Minister for Home Affairs [2019] AATA 757 (‘TGXY’), Member Eteuati found that the weight of recent Federal Court authority appears to adopt a somewhat narrower view than that taken by Griffiths J in DKXY.[86] The approach in TGXY was endorsed by SM Tavoularis in Dalley. This Tribunal has previously endorsed the ‘narrow’ approach to the determination to the expectations of the Australian community: Burton and Minister for Home Affairs [2018] AATA 1313 at [119]-[121].
[86] at [190].
Having regard to paragraph 13.3(1) and the relevant Federal Court authority, the Tribunal finds that the expectations of the Australian community would be that the Mandatory Visa Cancellation Decision not be revoked. The Tribunal finds that while the Australian community may have been prepared to overlook or tolerate the offences committed by the Applicant as a young man, it would expect that as an adult, and after periods of imprisonment, he would make necessary changes in his life to prevent him from re-offending. Since his first term of imprisonment in 2001, the Applicant has not made these changes, and his pattern of drug use and offending has continued. In these circumstances, it is reasonable to conclude, and the Tribunal finds, that the expectations of the Australian community are that the Applicant should no longer hold a visa permitting him to remain in Australia.
In making this finding the Tribunal has also had regard to Principle 6.3(2) and (3) of the Direction, which recognises that the Australian community would expect that the Applicant should not hold a visa on account of the serious crimes he has committed, in particular, given that the crimes were of a violent nature and committed against women. It further has been guided by Principle 6.3(6) of the Direction which recognises that Australia has a low tolerance of any criminal or other serious conduct by visa applicants, such as the Applicant, holding a limited stay visa. The evidence before the Tribunal is that whereas the Applicant has resided in Australia for 32 years, for the duration of his stay he has not held a substantive visa. These factors weigh heavily against the revocation of the Mandatory Visa Cancellation Decision. On the other hand, Principle 6.3(5) does recognise that Australia may afford a higher level of tolerance of criminal or other conduct in relation to a non-citizen, such as the Applicant, who has lived in the Australian community for most of their life, or from a very young age. However, the Tribunal finds that on balance the nature and frequency of the Applicant’s offending and his inability to address the source of his offending supports the finding that the expectations of the Australian community are that he should no longer holder a visa entitling him to remain.
Accordingly, for the reasons outlined above and applying the guidance in paragraph 13.3(1), the Tribunal finds that Primary Consideration C weighs against the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘Other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Justice Colvin observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
2)    The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Having regard to the guidance in paragraph 14.1, the Tribunal has given consideration to whether the Applicant is owed protection obligations by Australia. The Tribunal notes that if it does not revoke the Mandatory Visa Cancellation Decision, the Applicant will be prevented by s 501E of the Act from making any applications for other visas (save for a protection visa or bridging visa). Given that the Applicant has already been refused a protection visa, he will be prevented by s 48A of the Act from making any further applications for a protection visa while he is in the migration zone.
Accordingly, applying the guidance in paragraphs 14.1(3) and 14.1(5) the Tribunal has considered the Applicant’s circumstances and made an assessment of whether the Applicant is owed protection obligations. It has done so noting that paragraphs 14.1(2) and 14.1(6), in so far as these provide that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, is inconsistent with the interpretation of the effect of s.197C of the Act adopted by ACJ North in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576. If the Tribunal does not exercise its discretion to revoke the Mandatory Visa Cancellation Decision, the Applicant will become liable to removal from Australia under s.198 of the Act as soon as reasonably practicable. Section 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen, and the Tribunal must consider the legal consequences of its decision to affirm the delegate’s decision.

The Applicant claimed in his revocation request that if he returns to Fiji, his life may be in danger because he and his family fled to Australia during the war. He also claims that people may look for him and try to hurt him.[87] However, he provided no further details of his claim to fear harm, nor did he do so when questioned at the hearing about any protection claims he may have in relation to his return to Fiji.
[87] Exhibit R1, G10, 101.
The Tribunal has considered current country of origin information in relation to the human rights and security situation for Indo-Fijians in Fiji. The Department of Foreign Affairs Country Information Report Fiji dated 27 September 2017 (‘DFAT Report’) provides information in relation to the situation for Indo-Fijians in Fiji. It relevantly provides:
Instances of official discrimination against Indo-Fijians are limited …
In general, Indo-Fijians and indigenous Fijians coexist amicably. While the two groups had distinct cultural traditions over 100 years of coexistence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists …
Overall DFAT assesses that Indo-Fijian face a low level of official and societal discrimination based on their race/nationality.[88]
[88] Department of Foreign Affairs Country Information Report Fiji dated 27 September 2017, paragraphs 3.8-3.9.
The Tribunal further notes that the Fiji Constitution of 1990, which is referred to in the decision of the Refugee Review Tribunal dated 21 March 1995, is no longer in place and has been replaced by the 2013 Constitution. The DFAT report states that this Constitution ‘provides for freedom from discrimination on the basis of race/ethnicity.’
On the basis of this country information, and having regard to the fact the Applicant’s claims in relation to fear of harm on return to Fiji were vague and not supported by evidence, the Tribunal finds that the Applicant does not have a well-founded fear of return to Fiji based on his Indo-Fijian ethnicity or for any other Convention-based reason and does not otherwise face a real risk of serious harm on return to Fiji. Accordingly the Tribunal finds that Australia does not owe the Applicant protection obligations by virtue of its non-refoulement obligations under the Refugees Convention, CAT or the ICCPR.
For these reasons, the Tribunal finds that this other consideration does not favour revocation of the Mandatory Visa Cancellation Decision.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1)Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Having regard to paragraph 14.2(1)(a) of the Direction, the Tribunal has given weight to the evidence before the Tribunal that the Applicant arrived in Australia as a five year old and has resided in Australia for some 32 years, which is the majority of his life. The Applicant considers Australia his home and he no longer has a connection to Fiji where he spent the early years of his life. However, having regard to paragraph 14.2(1)(a)(i), less weight should be given to this factor in circumstances where he began offending at age 16. Having regard to paragraph 14.2(1)(a)(ii), while the Applicant has spent some time contributing to the Australian community through periods employment, this contribution has been limited and sporadic.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal finds that the evidence demonstrates that the Applicant has significant ties to Australia, particularly his mother, sisters and son, all of whom are either Australian citizens or have a permanent right to remain. This supports the revocation of the Mandatory Visa Cancellation Decision.
The Applicant claims that his mother in particular will face hardship if he is removed to Fiji as he will be unable to provide her with financial and emotional support.[89] However, given the Applicant’s chequered employment history and drug abuse, the Tribunal has little confidence that the Applicant has assisted his family financially in the past or would be able to do so if he were to remain in Australia. It is also unclear to what extent he provided or is able to provide other types of support to his family. The Tribunal finds that whereas the adverse effect of his removal on his mother weighs in favour of the Applicant, it should be given limited weight, particularly in circumstances where she has been a victim of the Applicant’s criminal offending.
[89] Exhibit R1, G10, 94.
There is no evidence before the Tribunal to indicate that his mother and sisters would not be permitted to visit the Applicant in Fiji. However the Tribunal recognises that finances are not always adequate to permit families to travel abroad on a regular basis. There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and forms of electronic and other communication if he returns to Fiji.
On the basis of the evidence before it, particularly the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Applicant’s employment prior to his incarceration was working in a range of roles including as a car detailer and salesman. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to Fiji.
Impact on victims
Paragraph 14.4(1) of the Direction states:
1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision. The Applicant’s mother provided limited information in relation to his offending against her. On the current evidence, this consideration weighs neither for nor against revocation of the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The evidence before the Tribunal is that the Applicant has some family or friends in Fiji but he does not know if and how he will be able to make contact with them.
The Applicant would have the same access to social, medical and economic support as other Fijian citizens. The evidence does not indicate that the Applicant has high medical support needs, other than he may require medication for his mental health and drug use. English is commonly used in Fiji and any language barriers that the Applicant may face would not be insurmountable.
In relation to the considerations in paragraph 14.5(1) the Tribunal finds that living standards in Fiji will be less favourable to those in Australia. Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 37 years and has the skills to find employment in the tourism industry in Fiji. Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, although it will take time for him to readjust to life in a country in which he has not lived for most of his life.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to the welfare benefits of Fijian citizens including health care and social services. The Applicant will be able to access available treatment and support to address his drug habit and themedical treatment and medication he requires for his psychological condition. The Tribunal finds that the obstacles the Applicant may experience on his return to Fiji, whilst real are not insurmountable.
On balance, the Tribunal finds that this consideration weighs neither for nor against revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly those against his mother and former partner, and the risk of him re-offending in the event that he again relapses into drug addiction, are such that the protection of the Australian community is best served by non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s son for him to remain in Australia. However limited weight can be attached to this Consideration in circumstances in which the Applicant does not have, and never has had, a relationship with his son, and is unlikely to do so in future given his history of drug abuse and criminal offending, including domestic violence against the mother of his son.
Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision for the reasons outlined above, as the expectations of the Australian community are that the Applicant’s offending and his inability to address his drug habit, are such that he should no longer holder a visa entitling him to remain in Australia.
In regard to the relevant Other Considerations, only the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The decision of the Respondent dated 4 July 2019 to refuse to revoke the Mandatory Visa Cancellation Decision made under the Act is affirmed.

I certify that the preceding 167 (one hundred and sixty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.............................[sgd]...........................................
Associate
Dated: 27 September 2019

Dates of hearing: 12 & 13 September 2019

Applicant: In person

Advocate for the Respondent: Ms K Dunlop

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	12 & 13 September 2019
Applicant:	In person
Advocate for the Respondent:	Ms K Dunlop
Solicitors for the Respondent:	Sparke Helmore Lawyers