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

[2020] AATA 798

Tangataolakepa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 798 (9 April 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0484

Re:Tevita Tangataolakepa

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:9 April 2020 

Place:Perth

The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

....................................[sgd].................................

Deputy President Boyle

CATCHWORDS

MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – COVID-19 – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

CASES

Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affair [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(e), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.3(1), 14.5(1), Part C

REASONS FOR DECISION

Deputy President Boyle

9 April 2020

THE APPLICATION

1. The Applicant seeks the review of a decision of a delegate of the Respondent dated
   21 January 2020 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation under s 501(3A) of the Act of the Applicant’s resident return (subclass 155) visa (the visa).

2. The Applicant’s visa was cancelled under s 501(3A) of the Act because the Applicant does not pass the character test.

3. The application for review was made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.

   THE ISSUES

4. The issue for determination by the Tribunal is whether the discretion in s 501CA(4) of the Act should be exercised in favour of revoking the cancellation of the Applicant’s visa.

5. The Tribunal will need to determine whether:

   (a)

   the Applicant passes the character test (as defined in s 501 of the Act):

   
   

   s 501CA(4)(b)(i); or

   (b)there is another reason why the cancellation decision made under s 501(3A) should be revoked: s 501CA(4)(b)(ii).

   BACKGROUND

6. The Applicant is a 55 year old citizen of Tonga. He first arrived in Australia on

   
   

   23 September 1990 at the age of 26. He has resided in Australia since then.[1] He was granted the visa on 3 August 2010.

   [1] R2, G19.

7. The Applicant was given notice on 17 July 2019 that the visa had been cancelled under
   s 501(3A) of the Act on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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 Territory (ss 501(6)(a) and 501(7)(c)).

8. The Applicant requested revocation of the cancellation of his visa and, on 5 August 2019, a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.

9. On 25 January 2020 the Applicant sought review of that decision in the Tribunal.

   LEGISLATIVE FRAMEWORK

10. Section 501(3A) of the Act provides that:

    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.

11. A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:

    For the purposes of the character test, a person has a substantial criminal record if:

    (a)   ...

    (b)   ...

    (c)   the person has been sentenced to a term of imprisonment of 12 months or more

12. Section 501CA of the Act provides:

    (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    ...

    (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.

    Ministerial Direction 79

13. Section 499(1) of the Act provides that:

    (1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:

    (a)   the performance of those functions; or

    (b)   the exercise of those powers.

14. Section 499(2A) of the Act states that:

    [a] person or body must comply with a direction under subsection (1).

15. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named ‘Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA’ (Direction 79). The commencement date for operation of Direction 79 was

    
    

    28 February 2019.[2]

    [2] Paragraph 2 of Section 1 of Direction 79.

16. Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:

    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

17. Paragraph 6.2 of Direction 79 provides general guidance as follows:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

18. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:

    (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 to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

19. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.

20. Paragraph 13(2), which is in Part C of Direction 79, provides:

    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    a)    Protection of the Australian community from criminal or other serious conduct;

    b)    The best interests of minor children in Australia;

    c)    Expectations of the Australian community.

21. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. 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.

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

    THE HEARING

22. The application was heard on 1 April 2020. The Applicant was represented by
    Mr G Barnes and the Respondent was represented by Mr A Burgess. Both Mr Barnes and
    Mr Burgess appeared by video link. The Applicant appeared by video link from
    Yongah Hill Immigration Detention Centre. A Tongan language interpreter, Ms Johnson, was present throughout the hearing by telephone link. These arrangements were made necessary by the closure of the Tribunal premises to the public and parties due to the COVID-19 pandemic. The Tribunal thanks the parties concerned for their cooperation. The Tribunal also wishes to thank Mr Barnes for his representing the Applicant on a
    pro bono basis.

23. At the commencement of the Applicant giving evidence, Mr Barnes advised the Tribunal that he had the day before discussed with the Applicant the Applicant’s ability to understand English. Mr Barnes suggested[3] that the best way to proceed was that the Applicant would seek translation of a question only if he could not understand it.

    
    

    The Applicant’s evidence was given on that basis. On a number of occasions it was necessary for the interpreter to translate questions. The Applicant cannot read. Insofar as documents were put to the Applicant during the hearing, the relevant content of the document was read aloud by counsel. The Tribunal is satisfied that the Applicant understood the questions that were asked of him through the above-described process.

    [3] Transcript at 4.

24. The Applicant was the only witness to give evidence at the hearing.

25. The following documents were before the Tribunal:

    (a)Applicant’s statement dated 20 March 2020 (Exhibit A1);

    (b)Applicant’s statement dated 25 March 2020 (Exhibit A2);

    (c)Statement of Ms N and Minor Child #2 both dated 25 March 2020 (Exhibit A3);

    (d)PAYG payment summary dated 12 July 2019 (Exhibit A4);

    (e)Documents attached to the Tonga World Health Organisation (WHO) Country Cooperation Strategy (Exhibit R1);

    (f)G Documents received 12 February 2020 (Exhibit R2); and

    (g)Respondent’s Tender Bundle received 18 March 2020 (Exhibit R3).

26. It also emerged at the hearing that the Applicant had signed a statement on

    
    

    20 March 2020 which had been prepared with the assistance of Senator Water’s office. Unfortunately that statement had not been filed with the Tribunal or provided to the Respondent. After some discussion with the Tribunal[4] Mr Barnes expressed the view that the information that was set out in that statement was ‘probably contained’ in other statements of the Applicant, statements and letters of support from others and in the Applicant’s submissions, all of which were before the Tribunal.

    CONSIDERATION

    [4] Transcript at 16.

    Does the Applicant pass the character test?

27. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[5] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case, in s 501(7)(c) (see [11] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

    [5] [2009] AATA 47; (2009) 106 ALD 666.

28. The Applicant concedes that he does not pass the character test (paragraph 16 of the Applicant’s statement of facts, issues and contentions (SFIC) dated 26 March 2020) and agrees that the only issue for consideration is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (Applicant’s SFIC para. 17).

    PRIMARY CONSIDERATIONS

    First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))

29. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

    (1)...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 non­citizens 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.

    (2)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.

    Nature and seriousness of the conduct (paragraph 13.1(2)(a))

30. Paragraph 13.1.1(1) of Direction 79 provides:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    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)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

1. The Applicant’s criminal and driving offending record is as follows:

Court	Date	Offence	Court Result
Carnarvon District Court of Western Australia	18/06/2019	Endanger life, health or safety of a person	Original Term: 13 months term to serve 2 months suspended for 11 months from 21 June 2019. Concurrent; Mdl Disqualified 1 Years concurrent from 21 June 2019 – concurrent.
	18/06/2019	Wilfully & unlawfully destroy or damage property	[Counts 1] Part susp imp order: Original Term: 3 Months Term to Serve 2 Months Suspended for 11 Months from 21 June 2019 – Concurrent.
Kalbarri Magistrates Court	18/04/2018	No authority to drive	[SPENT][Counts 1] $200 fine.
Broken Hill Local Court	20/01/2015	Common assault	Community service order: 60 hours.
	22/01/2013	Common assault	Bond S9: 12 months and court costs: $83.
		Use offensive language in/ near public place/ school	$300 fine and court costs: $83.
		Assault occasioning actual bodily harm	Bond S9: 18 months

1. The convictions which caused the cancellation of the Applicant’s visa under s 501(3A) of the Act are those recorded on 18 June 2019 of endanger life, health or safety of a person, for which he was sentenced to a term of 13 months imprisonment, and wilfully destroy or damage property for which the Applicant was sentenced to three months imprisonment with two months suspended and the remaining month to be served concurrently.

2. The circumstances of the offending were set out by Gillan DCJ in sentencing the Applicant as follows:[6]

   [6] R2, G8/55-58.

   …You are here to be sentenced for two offences on your plea of guilty. The first is unlawfully doing an act likely to endanger life, health or safety and the second is criminal damage. The circumstances of your offending are as follows. In the first part of 2017, you were living in Carnarvon along with your sons, one of whom was [son F]. [Ms L] came to Carnarvon to take up employment.           You were interested in [Ms L] - who you had known for some years - but she did not entirely reciprocate your interest.

   In about March 2017, [Ms L] and your son [son F] started a romantic relationship with each other. After you found out about the relationship, they left Carnarvon together and were away for a period of roughly two months. [Ms L] and [son F] returned to Carnarvon in early July 2017 for work and started to live at the Carnarvon Caravan Park. You were then and you remained totally against the relationship and you were making efforts to have your son come home and finish that relationship.

   On an occasion in early July 2017, you saw [Ms L] and [son F] at the Bankwest branch in Carnarvon. You spoke with your son and then you approached [Ms L] and you spoke to her. In your words, you growled at her. You accept that what that meant is that you were insulting and aggressive towards her in the context of a demand that [son F] return home within the week and that the relationship should end.

   On the evening on 19 July 2017, there were further  telephone conversations in which that demand that [son F] return home was made again and I find that you were acting aggressively towards them during those conversations. On the morning of 20 July 2017, at about 8 am, [Ms L] and [son F] were in a Ford Territory, driving to work when they turned into North River Road. [Son F] was driving,      notwithstanding that he was then unlicensed.

   They saw you in your car and you saw them. You drove up behind them with the intention of making them stop. You pulled up beside them and you insisted that they stop but [son F] did not want to stop. He and [Ms L] were frightened and they drove away at speed. You then chased them along North River Road and onto the highway, heading back towards Carnarvon. They were driving at very high speeds to get away from you and you; instead of recognising the danger inherent in the situation, continued to chase them at speed and following very closely behind them.

   They were at times driving at speeds up to 160 or 180 kilometres an hour to get away from you and you were trying to overtake them to force them to stop.   [Ms L] made a triple zero phone call to the police to report what was happening and get assistance and she was told they should go to the police station.

   
   

   Once [son F] in the Territory reached Carnarvon, the speed dropped but they were still travelling at about 90 kilometres per hour.

   At first they drove past the police station, being mistaken as to whether it was open, and then in a loop along a road which went past a school. At one stage you tried to overtake them on a road which is a single lane each way. [Deleted], a driver on the road, described the speed at which you were both travelling as being very fast and that each of you, [son F] and she were at one stage travelling three abreast in the same direction.

   At some stage a second triple zero call was made and [Ms L] was again directed to the police station, where she understood the police would provide assistance.

   
   

   The Ford Territory returned to the police station and drove in with you following in hot pursuit. There were no police obviously waiting in the car park and [Ms L] started to get out of the car to run to the front door but your car came up close to theirs and you then deliberately collided with the Ford Territory.

   That impact was not at terribly high speed and did not cause a great deal of damage but the Ford Territory went forward to get away from you, but was blocked from leaving the car park again by a police vehicle.           You got out of the car and shouted at [Ms L] and [son F] while they were taken inside the police station through the back door. You were arrested and interviewed and at first denied that you had collided with them, asserting that they had collided with you.

3. Judge Gillan then described the Applicant’s background and personal circumstances as follows:[7]

   [7] R2, G8/58-60.

   …you are a man who was born in Tonga and who is now 55 years of age.

   
   

   You have lived in Australia since 1984 and have lived and worked around Carnarvon for many years. You've had two substantial relationships and have five children, the youngest of whom is 12 years of age.

   Your youngest children are living in Menindee, but your three older children appear to have been living in         Carnarvon with you. [Son F], of course, is not now living with you, but his younger brother [Deleted], who is 16 years of age, has been living and working with you in Carnarvon. As I said, you were born in Tonga and you lived there during your education years, and I understand that you didn't quite finish year 8. You have, however, always been a hardworking man for your whole life, and it seems that you've spent many years working in manual gardening and pruning positions, both here and in the eastern states.

   You do have a record of some prior offending in New South Wales, which includes some assaults, including one occasioning bodily harm, and I am told, and I accept, that these were against men who were in extended family relationships with you.        That record does not aggravate your offending on this occasion, but it does mean that you do not come to be sentenced as being of prior good behaviour, and it might mean that you have not always consistently displayed a level of emotional control that you might have.

   That said, I have heard from the writer of - well, from an oral pre-sentence report, and the pre-sentence report preparer told me that, when you spoke with her, you took full responsibility for your actions on this occasion and that you have very much come to appreciate the serious nature and the potential consequences that might have flown from your driving. You have accepted that your actions arose out of poor emotional management, and that you may need some assistance with this.          And you've expressed a preparedness to engage with the types of        programs that might help you with this, and to have your 19-year-old son assist with communication for that purpose.

   You do have a relationship still with your other children in the east, and your former wife, and you have expressed a desire to return to see them from time to time.

   … You pleaded guilty to these offences, and I accept that plea of guilty was at a reasonably early opportunity, that you offered to plead to the offences of which you were ultimately convicted, and also accept, by reason of that plea of guilty and by what I've heard from the pre-sentence report writer along with Mr Bodeker,

   
   

   your counsel, that you have reflected on your behaviour and you are very remorseful for it.

   This means that you are capable of addressing your behaviour, and it's unlikely that you will engage in this sort of behaviour again, but your actions on this occasion were highly dangerous - and these are the aggravating things.

   
   

   The actions on this occasion were highly dangerous, prolonged and undertaken in an effort to enforce your will on [Ms L] and [son F]. It is only by reason of the greatest of luck that no one was seriously injured or killed, particularly because you knew that [son F] was both young and unlicensed and unlikely to be making good decisions.

4. Her Honour then discussed the various factors affecting the sentence to be imposed, whether a wholly suspended term of imprisonment was appropriate and the need for community deterrence. She accepted that some of the term of imprisonment should be suspended and advised:[8]

   Your actions were reckless and selfish and they are deserving of a term of imprisonment. The real question here is whether I can suspend that term of imprisonment and I have considered all of the matters, including the aggravating factors and the mitigating factors again and the seriousness of this matter and I have come to the· conclusion that I think that I can partially suspend a term of imprisonment against you.

   I'm prepared to do this because you have otherwise been a hardworking man consistently in the community and in support of your children and because I accept that this was somewhat aberrant behaviour on your part for which you have now accepted responsibility and because of your obligations to care for [Deleted].

   [8] R2, G8/63.

5. The Respondent contends that the Applicant’s offending should be viewed as very serious pointing to the factors identified in paragraph 13.1.1 of Direction 79. In particular the Respondent submits as follows:[9]

   [9] Paragraphs 19-24 of the Respondent’s SFIC.

   19.First, the applicant’s conviction for endanger life, health or safety of a person involved a violent offence, whereby the applicant rammed his car into his son’s car after pursuing his son and his partner at speeds of up to 180km/h.

   
   

   The sentencing remarks reveal that the applicant was against his adult son’s relationship with [Ms L], after [Ms L] had turned down the applicant’s own advances. On a number of occasions, the applicant aggressively confronted his son and [Ms L], trying to end the relationship. On 19 July 2017, the applicant saw the couple in their car and drove up behind them with the intention of making them stop. The couple drove away and the applicant chased them at speeds up to 180kmh. The couple drove to the police station and when they pulled up, the applicant deliberately collided his car with theirs. The Minister contends that violent offences must be viewed very seriously (paragraph 13.1.1(1)(a) of Direction 79).

   20.Second, one of the victims to the applicant’s offence of endanger life, health or safety of a person was a woman. The Minister contends that crimes of a violent nature against women must be viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b) of Direction 79).

   21.Third, the applicant had previously been convicted of common assault on two occasions and assault occasioning bodily harm on one occasion. All three previous assaults also involved the applicant assaulting family members.

   
   

   The applicant’s convictions for assault and assault occasioning bodily harm in 2013 involved the applicant assaulting family members “due to an alcohol induced family conflict” (G7/134). The applicant pushed his niece and her female partner during a confrontation and his niece fell to the ground suffering injuries to her neck. The Minister contends that crimes of a violent nature against women must be viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b) of Direction 79).

   …

   23.Fourth, regard must also be had to the fact that the applicant has been sentenced to a term of imprisonment for his offending (paragraph 13.1.1(1)(d) of Direction 79). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved.

   24.Fifth, the Tribunal must have regard to the frequency and cumulative effect of repeated offending (paragraphs 13.1.1(1)(e) and (f) of Direction 79).

   
   

   The applicant’s offending began in 2013 and has continued with similar offences until the applicant’s most recent offending for which he was convicted on 18 June 2019. The Minister contends that the applicant’s offending is consistent, frequent and sustained, and also repetitive and has increased in seriousness and frequency since his arrival in Australia. The Minister also contends that the seriousness of the applicant’s more recent offending is greatly increased by virtue of his previous history of family violence and violent offending.

6. The Applicant points out that the two offences to which he pleaded guilty and for which he was sentenced in June 2019 are the only offences for which he has been sentenced to terms of imprisonment and submits that the sentences imposed were at the lower end of the range for the offences which carry maximum sentences of seven years and 10 years respectively.

7. The Applicant further contends that the previous offending related to family disputes and that it is evident from the sentencing dispositions that the 2013 and 2015 assaults were at the lower end of the offending scale.

8. The Applicant was cross-examined on the circumstances of the 2013 and the 2015 convictions. His evidence in relation to the 2013 offence was that he was, at that time, going through a rough stage as he was breaking up with his partner of 20 years (Ms N) with whom he said he has seven children. There was a drunken altercation in which he pushed two of his ‘nieces’ causing one to fall. According to the Applicant when she fell she scratched her neck resulting in the charge of assault occasioning bodily harm.

   
   

   He says that he was heavily intoxicated at the time. He was also convicted of common assault arising out of the incident, however, cannot recall having pushed his other

   
   

   niece which, apparently, was the basis of the common assault charge. He accepts that the assaults occurred and he pleaded guilty to both charges.[10]

   [10] Transcript at 22.

9. In relation to the 2015 offence, the Applicant says that his former partner’s mother had died and that he and members of her family had been drinking for days following the funeral. He got into an argument with his former partner’s brother about how his former partner was raising his children and a scuffle ensued. He was charged with assaulting another of his nieces but says that he cannot really remember the circumstances but accepts that he pushed his niece relying on what she has told him.

   
   

   He pleaded guilty.[11]     

   [11] Transcript at 23.

10. He says that as a result of these incidents he stopped drinking in 2015 and has not drunk since. His claim not to have drunk alcohol since 2015 was not contested in

    
    

    cross-examination.

11. Other than the assault convictions in 2013 and 2015 and the two more serious convictions in 2019, the Applicant’s only other convictions are for use of offensive language

    
    

    (for which he was convicted at the same time as the two assaults in 2013) and driving without authority in 2018.

12. In relation to the frequency and the cumulative effect of the Applicant’s offending (paragraphs 13.1.1(1)(e) and (f) of Direction 79), the Applicant has been in Australia for nearly 30 years. His first offending occurred in 2013, some 23 years after he arrived in Australia. In the 30 years that the Applicant has been in Australia there have been only three incidents which have resulted in the criminal convictions and during that period only one driving offence.

13. While there have been, as the Respondent points out, offences which, by virtue of paragraph 13.1.1(1)(a) and (b) of Direction 79 must be viewed as very serious because they were offences involving violence against women, the Applicant’s record, as a whole, is not particularly serious. Further, as reflected by the penalties imposed, the assaults were at the lower end of the scale, they were not vicious and were not pre-mediated. In each case they could be considered to be spur-of-the-moment very bad decisions and, in the earlier cases, also committed while under the influence of alcohol.

14. Up until the sentences for the two convictions in 2019 the Applicant had only received a bond, fines and a community service order. Even the penalties imposed for the most serious offences, those in 2019, were at the lower end of the scale and only just satisfied the definition of a substantial criminal record under s 501(7) of the Act. In making that observation, however, the Tribunal is mindful of the serious harm that could have been caused by the Applicant’s appalling driving in July 2017.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

15. Paragraph 13.1.2 of Direction 79 provides:

    (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 rehabilitative courses to be undertaken).

16. Senior Member Dr M Evans in CZCV and Minister for Home Affairs[12] (CZCV) summarised the task for the Tribunal as follows:

    56.In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

    An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

    57.In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.

    [12] [2019] AATA 91.

17. The Tribunal agrees with and adopts the approach indicated in the above cases.

    Nature of harm to individuals or the Australian community (13.1.2(1)(a))

1. The most serious of the Applicant’s offending is obviously that which occurred in

   
   

   July 2017 for which he was convicted in June 2019 and for which the Applicant was imprisoned. The nature of the harm to individuals and to the community if the Applicant were to re-offend is obvious and serious. From the description of the Applicant’s offending on that occasion, it seems a matter of only luck that a member of the public, or those in the car that the Applicant was chasing, were not seriously hurt.

2. The nature of the harm that individuals might suffer if the Applicant were to commit assaults as he did in 2013 and 2015 is equally serious. As noted earlier, however, although one of the assaults involved actual bodily harm being sustained by the victim, the injury, on the evidence before the Tribunal, was only minor. The assaults were by no means savage or sustained and seemed to involve drunken bad decisions rather than malice or premeditation.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))

3. The Applicant contends that he is not a risk of re-offending (Applicant’s SFIC para. 28). He says that the circumstances of his offending in 2017 were extremely specific to the relationship between his son and Ms L.

4. In relation to the previous offences, the assault convictions in 2013 and 2015, again the Applicant (Applicant’s SFIC para 32) characterises these offences at the lower end of the scale and as being ‘pushes during an argument’. While the Tribunal is mindful of the seriousness of domestic violence, particularly in the indigenous community, and the low tolerance that should be afforded such offending, the Applicant’s characterisation of the offences is fair. It was effectively two occasions of pushing which involved excessive alcohol.

5. The Applicant submits that he accepts responsibility for his offending and is remorseful. The Respondent contends that the Applicant has shown little remorse. The Tribunal does not agree with the Respondent. The Applicant’s evidence at the hearing was persuasive. In cross-examination counsel put to the Applicant that his explanation of the incident in July 2017 when he pursued his son and Ms L in their car sought to blame Ms L for what occurred.[13] The Applicant responded as follows:

   I [do] not blame her for it, I blame myself. I blame myself, and I realise lot of things in gaol and in here, and I do a course here, and I - it’s - everything is - I can see it’s wrong.

   [13] Transcript at 36.

6. The Tribunal also notes Gillan DCJ’s assessment (See [34] above) that:

   … I have heard from the writer of - well, from an oral pre-sentence report, and the pre-sentence report preparer told me that, when you spoke with her, you took full responsibility for your actions on this occasion and that you have very much come to appreciate the serious nature and the potential consequences that might have flown from your driving.

   …

   …I've heard from the pre-sentence report writer along with Mr Bodeker, your counsel, that you have reflected on your behaviour and you are very remorseful for it.

   This means that you are capable of addressing your behaviour, and it's unlikely that you will engage in this sort of behaviour again,…

7. The offending in July 2017 does appear to have been an aberration.

8. Overall the Tribunal found the witness to be credible and sincere. He gave frank answers which provided his best recollection of events and did not, in the Tribunal’s assessment, attempt to blame others or minimise his culpability. He even, in response to a question put to him by the Tribunal, admitted that he had smoked marijuana in the past although he has never been charged with any drug related offences. He has each time that he has appeared in court pleaded guilty.

9. He was also asked in cross-examination whether he had undertaken any courses while in prison and detention and before that when in the community. As is often the case, unfortunately, it appears that because of the relatively short sentence and time in detention, relevant courses have not been available. There was evidence that he had participated in a weekly men’s group and life skills meetings from November 2018 to January 2019 and a session on anger management in February 2019 while in the

   
   

   Yongah Hill Immigration Detention Centre. More recently the courses that the Applicant had been enrolled in at Yongah Hill had been suspended due to the COVID-19 pandemic.

10. Letters were also provided by the WA Country Health Service[14] and 360 Health and Community[15] that alcohol and other general counselling services, including anger management counselling, would be available to the Applicant.

    [14] R2, G17/136.

    [15] R2, G17/137.

11. It is clear to the Tribunal that the Applicant is very close to his family, both his immediate family and his extended indigenous family. His evidence at the hearing was:[16]

    I want to get out to be with my family, to give - help them. That’s all I do. I work all my life to provide for my family (indistinct) because I never go to school.

    [16] Transcript at 36.

12. The Applicant has a partner, Ms W, with whom he will live if he is allowed to stay in Australia. She owns a house in Perth. As Gillan DCJ noted in her sentencing remarks, the Applicant has always been a hard-working person. Letters of support were provided by his former employers. Domenic Condo, a Carnarvon plantation owner, stated in his letter dated 23 July 2018[17] that the Applicant was a hard-working, reliable and honest man who has since 2013 worked on his plantation. He says that the Applicant is a ‘great asset to the farming community’. Similar letters were provided by Joe Leca[18] and Andrew Durmanich[19] who are also Carnarvon plantation owners.

    [17] R2, G13/117.

    [18] R2, G13/118.

    [19] R2, G13/119.

13. The Tribunal is satisfied that if the Applicant were released back into the community he would have support through his partner and his extended family. It also seems that the Applicant’s employment prospects are good based on the support that has been provided to him by his employers.

14. Taking all of these factors into account, the Tribunal’s assessment is that the likelihood of the Applicant re-offending is very low.  

15. The Tribunal finds that the first primary consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.

    Second primary consideration: Best interests of minor children in Australia affected by the decision (13(2)b))

16. Paragraph 13.2 of Direction 79 provides:

    (1)Decision-makers must make a determination about whether revocation is in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

    (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    a)  The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    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 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.

17. The Applicant has two minor children, one aged 17 (Minor Child #1) and the other 11 (Minor Child #2). They live with their mother, Ms N, in New South Wales. The Applicant has a stepson with Ms W who is 17. He also has nine grandchildren ranging in age from eight months to 10 years.

18. One of the Applicant’s adult sons and his stepson lived with the Applicant and

    
    

    Ms W before the Applicant’s imprisonment. Ms W provided a statement[20] saying that the Applicant has been ‘a good role model to both boys’. She says that he has been a father figure to her son and that the Applicant and her son have developed a good relationship.

    [20] R2, G11/70.

19. The Applicant’s former partner and mother of his two minor children, Ms N, provided a letter of support[21] and a statement dated 25 March 2020.[22] She says in the letter of support that she is an aboriginal woman living in the aboriginal township of Menindee in far western New South Wales. She says that the Applicant is the father of her seven children, four of whom are his biological children, and her three older children to whom the Applicant has ‘always been the father figure’. She says that he has always been an ‘outstanding father’ and a ‘doting grandfather to our 4 grandchildren’. She says that the Applicant continues to support her and the children financially and emotionally and that his being sent back to Tonga would have a significant impact on her and the children emotionally as well as financially.

    [21] R2, G12/105.

    [22] A3.

20. In her statement of 25 March 2020[23] Ms N speaks of her aboriginal heritage and how when she met the Applicant she already had three children from a former relationship. She says that the Applicant treated those three children as if they were his own. She says that the Applicant is accepted in the aboriginal community of Menindee and by her family and that his removal would have a significant impact on his children, grandchildren and her extended family.

    [23] Ibid.

21. A letter of support was also provided by the Applicant’s 11 year old son (Minor Child #2).[24] In that letter the boy says that the Applicant comes and visits them when he is in New South Wales and that he also talks to the Applicant on the phone. He also says that the Applicant sends them money for clothes and shoes. The boy says that he needs the Applicant to stay in Australia to teach him about his culture such as ‘emu in a hole and a pig on a spit’. The boy also provided a statement dated 25 March 2020[25] which sets out the things that he used to do with his father such as camping, fishing and swimming and how much he misses his father.

    [24] R2, G12/97.

    [25] A3.

22. A letter was also provided by the Applicant’s 17 year old son (Minor Child #1) who lives with his mother in Menindee.[26] He says that his father is hardworking, respectful and a role model. He says that the relationship with his father is strong, that his father has always supported them financially and that they face financial hardship if he is removed. His education relies greatly on the Applicant’s financial contribution. His father’s guidance ‘continues to drive my commitment to becoming the best man I can be’.  

    [26] R2, G14/123.

23. Letters were also provided by two of the Applicant’s grandchildren (aged seven and eight) who live in Broken Hill.[27] They speak of the closeness to their grandfather and their wish that he be allowed to stay in Australia. A statement was also provided by the father of those two grandchildren[28] who states that the Applicant has always ‘provided for his 7 children and grandchildren to help with their needs’ and that he ‘never let his family go without’. The mother of those grandchildren, the Applicant’s stepdaughter, gave a statement[29] recounting episodes when the Applicant had assisted her emotionally and financially and had also provided financial support to her extended family.

    [27] R2, G12/101 and 103.

    [28] R2, G12/111.

    [29] R2, G12/109.

24. A letter[30] was provided by the school counsellor from [Deleted] who said that he had spoken to the Applicant’s two minor children who ‘spoke glowingly of their warm and close relationship with their father’ and how they had regular contact with him on the telephone. The counsellor proffered the view that deportation of the Applicant ‘would place a significant strain on an already stretched family’.

    [30] R2, G12/115.

25. The Applicant’s own evidence[31] is that he made phone contact with his grandchildren every night and that he sent them money every payday.

    [31] R2, G11/89.

26. The Respondent contends (Respondent’s SFIC para. 32) that limited weight should be given to this consideration given the Applicant’s history of family violence leading to him not being a positive role model, the fact that the children and grandchildren live in a different state to the Applicant, the lack of ‘independent evidence of the effect that separation would have on’ the Applicant’s two minor children and the fact that one of the minor children will shortly be turning 18. The Tribunal does not agree with the Respondent’s submission. The circumstances of the Applicant’s offending were particular the circumstances of the incidents and are not indicative of the Applicant’s general behaviour towards or relationship with and influence on his minor children and his grandchildren. Insofar as the Respondent asserts that there is no ‘independent evidence’, it is not clear to the Tribunal what ‘independent evidence’ (whatever that would be) would add to the direct evidence of the children and their mother (see [68] and [69] above) of the effect that the Applicant’s removal would have on those minor children.

27. The Respondent does accept that overall this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, but submits that it weighs only slightly in favour of revocation. The Tribunal disagrees. While the Applicant’s minor children and grandchildren live in another state (with the exception of Ms W’s son),

    
    

    the various statements provided indicate that his relationship with these minor children and grandchildren is significant, that he has supported them emotionally and financially and that there would be a not insignificant impact, in particular emotionally, on them if he were to be removed. In the Tribunal’s assessment this consideration should be given moderate weight.

    Third primary consideration: Expectations of the Australian community (13(2)(c))

28. Paragraph 13.3 of Direction 79 provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to 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.

29. The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [18] above).

30. The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[32] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[33] and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[34] (FYBR).

    [32] [2017] FCA 1466.

    [33] [2019] FCA 495.

    [34] [2019] FCA 500.

31. That debate as to which approach is correct appears to have been resolved by the

    
    

    Full Court of the Federal Court in FYBR v Minister for Home Affairs[35] (FYBR (FC)).

    
    

    The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing

    
    

    ‘an expectation deemed by the government to be held by the Australian community’ (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]).

    [35] [2019] FCAFC 185.

32. An analysis of the various judgments and the effect of the judgment in FYBR(FC) is set out in [150] to [154] of this Tribunal’s decision in Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[36] (Berryman). The Tribunal adopts the analysis in those paragraphs.

    [36] [2020] AATA 421.

33. As noted in Berryman at [154], this consideration must weigh against the revocation of the cancellation of the Applicant’s visa. In the present case, however, given that the Applicant’s record is not particularly bad, the fact that he has lived in Australia for nearly 30 years during which time he has positively contributed to the community, his ties to Australia, the impact that his deportation would have on minor children and the broader community, and the low likelihood of his reoffending, only minor weight should be given to this consideration.

    OTHER CONSIDERATIONS

34. Paragraph 14 of Direction 79 provides:

    (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a) International non-refoulement obligations;

    b) Strength, nature and duration of ties;

    c) Impact on Australian business interests;

    d) Impact on victims;

    e) Extent of impediments if removed.

    International non-refoulement obligations (14(1)(a))

35. The Applicant made no submission in relation to this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant and that this is, therefore, not a relevant consideration in this matter.

    Strength, nature and duration of ties (14(1)(b))

36. Paragraph 14.2 of Direction 79 is as follows:

    (1)The strength, nature and duration of ties to Australia. 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 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).

37. The Applicant has resided in Australia for nearly 30 years. He did not begin offending soon after arriving and he has contributed positively to the community through his employment.

38. The Applicant says that he has no relatives living in Tonga.[37] That claim is supported by the letter of support from his partner Ms W.[38] His personal circumstances form[39] identifies Ms W as being his partner for three and a half years. He says that he provides emotional and financial support for her and her children[40] and that he intends on marrying her.

    
    

    He says that he has about 20 uncles and aunties, 30 nieces and nephews and about

    
    

    25 cousins living in Australia.[41]

    [37] R2, G11/90.

    [38] R2, G11/71.

    [39] R2, G11/81-95.

    [40] R2, G11/85.

    [41] R2, G11/90.

1. Numerous letters of support were provided by members of the Applicant’s family.

   
   

   His second eldest son’s letter[42] talks of him having lived with the Applicant while working in Carnarvon and how his father supported him and how he also saw his father giving other people money when they needed it. Ms W’s 22 year old daughter provided a letter[43] in which she speaks of the support that the Applicant has provided to both her and her mother.

   [42] R2, G11/72.

   [43] R2, G11/73.

2. Ms K, a member of the Menindee aboriginal community, provided a letter[44] in which she says that the applicant is the father of four young boys/men in the community and that he has continued to support the boys emotionally and financially and how two of the boys moved to live and work with their father when they were old enough.

   [44] R2, G12/104.

3. Ms MN, sister of Ms N, in her letter[45] says that the Applicant was a positive influence and helped her cope with grief from losses of close family members. Her nephew left the community and initially went to live with the Applicant. He subsequently took his life but she believes that if he had stayed living with the Applicant he would be alive now.

   [45] R2, G12/106.

4. A letter[46] was also provided by the woman who the Applicant described as his

   
   

   stepdaughter (the Tribunal notes that she describes herself as the daughter of the Ms N’s sister, not the daughter of the Applicant’s partner Ms N) who was involved in the incident in 2013 which resulted in the assault occasioning bodily harm conviction. She speaks of the Applicant, whom she describes as her ‘uncle’, as being a father figure to her and her siblings as well as the Applicant’s biological children. She says that when she was young and got into trouble at home and had to leave, the Applicant and her aunty Ms N took her in. She says that she relied on the Applicant for emotional support and that since he has been in gaol she and her siblings have found the lack of someone to talk to stressful.

   [46] R2, G12/107.

5. Letters were also provided by others who described themselves as nieces of the Applicant’s,[47] another resident of Menindee who spoke of the closeness of the Applicant to his family, the Menindee school counsellor (see [72] above), the Applicant’s 24 year old stepson[48] who speaks of the support that the Applicant has provided and how he has been inspired by the Applicant’s hard work and dependability. According to that stepson the Applicant is ‘the soul that has kept the family together’.

   [47] R2, G12/112, R2, G12/114.

   [48] R2, G12/120.

6. Other letters[49] were provided by relatives of Ms N and other community members speaking of the support that the Applicant had provided to them.

   [49] R2, G14/125-127; R2, G15/129-130 and R2, G17/138.

7. The Tribunal finds that the Applicant has deep social links with numerous members of the Australian community, that he provides emotional and financial support for members of his immediate and extended families and that his removal from Australia would cause financial hardship and a significant emotional hardship to those members of his family and to the community, particularly the Menindee aboriginal community.

8. This consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.

   Impact on Australian business interests (14(1)(c))

9. The Applicant did not make any submission on this consideration. The Respondent submitted that generally weight should only be given if the non-revocation would significantly compromise the delivery of a major project or delivery of an important service (Paragraph 14.3(1) of Direction 79). The Tribunal agrees with the Respondent’s submission. This is not a relevant consideration in this case.

   Impact on victims (14(1)(d))

10. Neither the Applicant nor the Respondent made any submission in relation to this consideration and the Tribunal finds that it is not relevant in this case.

    Extent of impediments if removed (14(1)(e))

11. Paragraph 14.5(1) of Direction 79 provides:

    (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.

12. The Applicant in his SFIC contended that he has lived in Australia for 30 years, that is more than half of his life, and while he has attempted to ‘maintain a connection with his Tongan culture’, he has not resided there for nearly 30 years and is no longer familiar with the Tongan way of life. He says that he has no family in Tonga and no support network.

13. The Respondent says that the Applicant is a middle-aged man with no physical or psychological conditions. The Respondent accepts that the Applicant would face some difficulties in re-establishing himself, but these would present only a short term hardship. He lived in Tonga for 26 years and re-establishing himself would not present any insurmountable problems. There are no language problems and there is no evidence that he would not have access to the same social, medical and economic support as other Tongan citizens.

14. Direction 79 requires the Tribunal to consider impediments in the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the Tonga. This is to be assessed taking into account the Applicant’s age, health, language or cultural barriers and any social, medical and economic support that would be available to him.

15. The Tribunal accepts that his removal from Australia would have an impact on the emotional state of the Applicant. While the Tribunal accepts that there may be some impediments to the Applicant establishing himself, there is no evidence that he would not be entitled to the same social and medical services available to other citizens of Tonga. The Applicant is not an old man and was working up to the time of his arrest.

    
    

    The evidence is, and the Tribunal accepts, that the Applicant is a hard worker with particular experience in the agriculture industry. There are obviously no language barriers and there are unlikely to be, and the Applicant has not argued that there would be, cultural barriers in the Applicant establishing a basic standard of living.

16. This consideration does no weigh in favour of the revocation of the cancellation of the Applicant’s visa.

    Impact of COVID-19

17. Prior to the hearing the Tribunal sought submissions from the parties on what, if any, impact the COVID-19 pandemic, including countries closing their borders, might have on the Tribunal’s considerations under Direction 79 or whether any such impact needed to be considered outside the scope of Direction 79.

18. The Applicant filed written submissions and the Respondent made brief oral submissions at the hearing. Because the Tribunal’s decision is that the reviewable decision be set aside and substituted with a decision that the cancellation of the Applicant’s visa be revoked, it is unnecessary to consider these submissions or that issue.

    The Weighing Exercise

19. Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.
    They provide:

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

20. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection[50] (see also the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ[51]).

    [50] [2018] FCA 594.

    [51] [2018] FCAFC 217; (2018) 363 ALR 325.

21. Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

    Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.

22. This Tribunal agrees with and adopts the approach outlined by Senior Member
    Dr M Evans.

23. Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in [49]-[62] above, the Tribunal finds that the likelihood of the Applicant re-offending is very low and that the risk is not an unacceptable one. The Tribunal finds that in the present case this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.

24. For the Reasons set out in [65]-[75] the second primary consideration, the best interests of minor children in Australia, weighs in favour of the revocation of the cancellation of the Applicant’s visa. The Tribunal is of the view that moderate weight should be given to this consideration.

25. The third primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the visa, which, as a result of the decision in FYBR (FC) (see [80] above), it always must, however for the reasons set out in [81] above the Tribunal gives only minor weight to this consideration.

26. In relation to the “other consideration”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)) weighs heavily in favour of the revocation of the cancellation of the visa. The consideration of the impediments that the Applicant would face if he is returned to Tonga does not weigh in favour of revocation of the cancellation of the Applicant’s visa.

27. Having undertaken the weighing exercise, the Tribunal is of the view that the correct or preferable decision is that the cancellation of the visa should be revoked.

    CONCLUSION

28. The Applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of his visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.

    DECISION

29. The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

................................... [sgd]..................................

Associate

Dated: 9 April 2020

Date(s) of hearing:	1 April 2020
Counsel for the Applicant:	Mr G Barnes
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers