Tavola and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 1203
•16 May 2023
Tavola and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1203 (16 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/1251
Re:Sefanaia Mitiani Tavola
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:16 May 2023
Place:Sydney
The Tribunal sets aside the decision under review made by the delegate, dated 21 February 2023, not to revoke the mandatory visa cancellation decision, and in substitution, decides that the cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa is revoked.
.......................................[SGD]....................................
The Hon. Dennis Cowdroy AO KC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community –– best interests of minor children – expectations of the Australian community – strength, nature, and duration of ties to Australia – impediments to removal – decision set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
Edwards and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2985
Folau v Minister for Immigration and Border Protection [2016] FCA 1149
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018) FCAFC 225
HVLC v Minister for Home Affairs [2019] FCAFC 204
Labi and Minister of Immigration and Border Protection (Migration) [2016] AATA 316
MJNN and Minister for Home Affairs [2019] AATA 3205
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Vazquez and Minister for Immigration Local Government and Ethnic Affairs [1989] AATA 165Weti-Safwan and Minister for Immigration and Border Protection [2016] AATA 797
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
16 May 2023
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 21 February 2023 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, on 27 January 2022, to cancel the Applicant’s Resident Return (Class BB) (Subclass 155) visa (“the visa”) (“the original decision”).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
On 21 February 2022, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).
On 21 February 2023, a delegate of the Minister decided not to revoke the original decision. On 28 February 2023, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 27 and 28 April and 2 May 2023.
RELEVANT LAW AND POLICY: DIRECTION NO. 99
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months’ imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.that the person passes the character test (as defined by section 501); or
ii.that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review a decision of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to section 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 99”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6)
7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
Protection of the Australian community from criminal or other serious conduct (“Primary Consideration 1”);
(1)Whether the conduct engaged in constituted family violence (“Primary Consideration 2”);
(2)The strength, nature and duration of ties to Australia (“Primary Consideration 3”)
(3)Best interests of minor children in Australia (“Primary Consideration 4”); and
(4)Expectations of the Australian community (“Primary Consideration 5”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(1)The legal consequences of the decision;
(2)Extent of impediments if removed;
(3)Impact on victims; and
(4)Impact on Australian business interests.
FACTS
The Applicant, who is 32 years of age, was born in Fiji in August 1990. The Applicant is a citizen of Fiji. The Applicant arrived in Australia in January 1995. He has not left Australia since 10 August 1995.
EVIDENCE
Statements
The Tribunal has had regard to the various character references and statements before it, including:
·Statements of the Applicant dated 9 February 2022 and 19 April 2023;
·Statement of Isikeli Tavola, the Applicant’s brother, dated 20 April 2023;
·Statement of Moses Tavola, the Applicant’s brother, dated 9 February 2022;
·Statement of Samu Waqabaca, the Applicant’s uncle, dated 17 February 2022;
·Statement of TJH, the Applicant’s daughter, dated 9 February 2022;
·Statement of SMT, the Applicant’s daughter, dated 9 February 2022;
·Statement of Tom Medak, Director of Iconic Structures at the Applicant’s former place of employment, undated;
·Statement of Mansour Hawa, Operations Manager at the Applicant’s current place of employment, dated 22 of March 2023;
·Statement of Johnny Nguyen, Pastor of the Potters House Christian Fellowship, undated;
·Statement of Kalesh Reddy, the Applicant’s cellmate at Bathurst Correctional Centre, dated 18 February 2022; and
·Statements of Natalie Chiappazzo, Service Provision Manager of Blacktown Youth Services Association, dated 1 February 2022; 24 March 2023 and 15 April 2023.
Medical evidence
The Tribunal has had regard to the medical evidence before it, including:
· Letter and report of Pierre-Louis Lamarque, Psychologist, dated 19 August 2021 and 19 April 2023; and
· Patient Records of South Western Sydney Local Health District, from dates 16 June 2019 to 28 June 2019.
Oral evidence
The Tribunal heard oral evidence from the Applicant, Isikeli Tavola, Moses Tavola, Natalie Chiappazzo and Pierre-Louis Lamarque.
APPLICANT’S CRIMINAL HISTORY
On the dates specified in the attached schedule, the Applicant was convicted of the following offences:
Date of court outcome
Date of offence
Event
Result
14.09.2005
03.09.2005
22.11.2004A. Larceny value ≤ $2000
B. Common assault
Both charges dismissed s33(1)(a) with caution
17.05.2006
10.01.2006
Robbery in company (two counts)
Probation s33(1)(e) (12 months)
30.10.2006
22.08.2006
Larceny value ≤$2000
Probation s33(1)(e) (6 months)
07.08.2007
09.07.2007
Never licensed person drive vehicle on road – 1st offence
$350 fine
01.05.2008
17.11.2007
Never licensed person drive vehicle on road – 2nd offence
$1000 fine
3-year disqualification
18.01.2010 12.01.2010
12.01.2010A. Common assault (DV)
B. Assault occasioning actual bodily harm (DV)
A. Bond s9 (2 years)
B. 200 hours of community service
29.10.2010
(Appeal outcome 03.12.2010)A. 03.02.2010
B. 17.07.2010
C. 17.07.2010
D. 17.07.2010
E. 17.07.2010
F. 17.07.2010
G. 06/03/2010 - 07/03/2010
H. 06/03/2010 - 07/03/2010
I. 12.01.2010
A. Drive while disqualified from holding a licence
B. Enter vehicle or boat without consent of owner/occupier
C. Drive while disqualified from holding a licence
D. Steal from the person
E. Resist officer in execution of duty
F. Drive with high range PCA
G. Destroy or damage property
H. Contravene prohibition/restriction in AVO (Domestic) (three counts)
I. Common assault (DV) (Call Up)
A. 3 months’ imprisonment
B. $400 fine
C. 9 months’ imprisonment
D. 12 months’ imprisonment
E. 6 months’ imprisonment
F. 6 months’ imprisonment; 3 years’ disqualification
G. 3 months’ imprisonment
H. 6 months’ imprisonment
I. 3 months’ imprisonment
02.12.2010
12.01.2010
Assault occasioning actual bodily harm (DV) (Call Up)
6 months’ imprisonment
02.09.2014 A. 02.08.2014
B. 02.08.2014
A. Leaner not accompanied by driver/police officer/tester
B. Drive with low range PCA – 1st offence
A. $640 fine
B. $1200 fine; 12 months’ disqualification
20.10.2014
16.09.2014
Drive motor vehicle during disqualification period – 2nd offence
12 months’ imprisonment suspended on enter bond s12; 3 years’ disqualification
30.04.2015 A. 03.01.2015
B. 21.09.2014
A. Fail to give information leading to driver’s identification
B. Negligent driving (no death or grievous bodily harm)
A. $1000 fine; 12 months’ disqualification
B. $800 fine; 12 months’ disqualification
10.05.2016 A. 20.01.2016
B. 20.01.2016
A. Common assault (DV) (two counts)
B. Contravene prohibition/restriction in AVO (Domestic)
A. Bond s9 (18 months)
B. Bond s9 (18 months)
29.09.2016
21.08.2016
Continue intoxicated etc behaviour after move on direction
Common assault (DV) (two counts) (Call Up)
Contravene prohibition/restriction in AVO (Domestic) (Call up)$750 fine
Bond s9 (18 months)
29.08.2017 A. 30.06.2017
B. 30.06.2017
C. 20.01.2016
D. 20.01.2016
A. Common assault
B. Destroy or damage property ≤ $2000
C. Common assault (DV) (two counts) (Call Up)
D. Contravene prohibition/restriction in AVO (Domestic) (Call Up)
A. 8 months’ imprisonment suspended on enter bond s 12: 8 months
B. 4 months’ imprisonment suspended on enter bond s 12: 8 months
C. Bond s 9: 12 months to attend for counselling, educational development, drug or alcohol rehab
D. Bond s 9: 12 months to attend for counselling, educational development, drug or alcohol rehab
23.11.2017 A. 24.08.2017
B. 24.08.2017
C. 10.11.2017
A. Common assault (DV)
B. Destroy or damage property (DV)
C. Fail to appear in accordance with bail acknowledgement
A. 7 months’ imprisonment suspended on enter bond s12: 7 months to attend for counselling, educational development, drug or alcohol rehab
B. Bond s9: 12 months to attend for counselling, educational development, drug or alcohol rehab
C. s10A conviction with no other penalty
29.03.2018 A. 23.02.2018
B. 23.02.2018
A. Resist or hinder police officer in the execution of duty
B. Use offensive language on public passenger vehicle/train etc
A. $300 fine
B. $300 fine
14.02.2019 A. 25.01.2019
B. 25.01.2019
C. 25.01.2019
A. Use offensive language in/near public place/school
B. Enter/leave restricted area not process ticket – adult
C. Intimidate police officer in execution of duty without actual bodily harm
A. $250 fine
B. $250 fine
C. 12-month community correction order
02.11.2021
(Appeal outcome 13.12.2021)07.11.2020
Reckless grievous bodily harm against his two younger brothers
18 months’ imprisonment
Sentencing observations
The Tribunal has considered the sentencing observations in relation to the above convictions.
Local Court, Gosford
On 29 October 2010, the Applicant was convicted of stealing, resisting arrest, driving while disqualified, and contravening an apprehended violence order. Magistrate Railton referred to the dysfunctional upbringing of the Applicant as a child and referred to the fact that the Applicant was someone “who responds to anger to get what he wants…”. In respect of the two serious driving matters, the Applicant was found to be driving while disqualified and his record showed that he had never held a driving licence. In respect of the matter which brought the proceedings to court, the Applicant, driving while disqualified, lost control of his vehicle, which overturned. A stranger used his mobile phone to ring for assistance. The Applicant then stole the phone. The Applicant was found to be driving with a reading of 0.20 of alcohol in his blood. The sentencing remarks refer to the need to “change his lifestyle and his addiction to alcohol, perhaps other drugs, and of course deal with his quite extreme anger problems”.
Local Court, Mount Druitt
On 2 December 2010, the Applicant was found to have breached a community service order. Magistrate Toose sentenced the Applicant to six months in custody commencing on 2 December 2010 and ending on 1 May 2011.
Local Court, Liverpool
On 2 November 2021, Magistrate Elks considered the unprovoked assault by the Applicant upon a person. His Honour stated:
The offence as you have been charged with was a very serious offence. The injury suffered by the victim were very serious, requiring him to have surgery. It is perhaps lucky he was not made a paraplegic or quadriplegic with damages to his spinal area. The attack was in a taxi driver who was a vulnerable person, and I take that into account as well. That aggravates the offence. There also does not seem to be any provocative behaviour or reason for the callous attack on the victim. The applicant was then sentenced to 18 months imprisonment with a non-parole period of nine months.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(1)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(2)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian Community from Criminal or other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also have particular regard to the principle that entering or 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. Many of the crimes for which the Applicant was convicted were violent and included crimes committed against a woman in a domestic violence context. There is no doubt that such conduct is serious.
The Tribunal notes significant matters relevant to the consideration of the protection of the Australian community:
(1)the crimes for which the Applicant has been convicted involve assault on both strangers and family members;
(2)the offences of the Applicant are increasing in seriousness; and
(3)the Applicant has a long criminal record dating back to 2005.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction and the following pre-sentence reports.
A pre-sentence report dated 22 August 2017 assessed the Applicant as unsuitable for a Community Service Order. It appears that such assessment resulted from the fact that the Applicant could not commit to the demands of such an order because of his full-time employment and work obligations.
A letter from Mr Tony Watson, Senior Community Corrections Officer, Fairfield Community Corrections dated 13 February 2018 records that the Applicant had been supervised in the Community Corrections Centre since he was placed on a good behaviour bond on 29 August 2017 and that he had responded favourably. It recorded the Applicant was referred to alcohol and other drug counselling to address his offending behaviour and that he has maintained full-time employment.
A pre-sentence report dated 19 August 2021 stated that the Applicant’s previous contact with Community Corrections appeared to have been satisfactory, stating:
…he was calm, engaged and forthcoming with information during the preparation of this report.
In that report, the Applicant was assessed at a “T3/Medium-Low risk of reoffending according to the Level of Service Inventory-Revised (LS 1 – R)”.
The Applicant was assessed as suitable to be placed on community service work. The Tribunal notes that the assessment took into consideration the Applicant’s offences of reckless grievous bodily harm and assault occasioning actual bodily harm, and noted that the offences were “violent in nature and [appear] to fit a pattern of violent offending as per his criminal history”.
A supervision plan notes that a referral to a psychiatrist was to be made, in accordance with the recommendation of his psychologist. No other conditions were considered necessary to implement the supervision plan at the T3/Medium-Low supervision level. In effect, this required the Applicant to have contact with a Community Corrections Officer every four weeks.
The Applicant’s offending has increased in seriousness, as evidenced by his most recent conviction of assault occasioning actual bodily harm. The Applicant wrote a letter of apology dated 5 September 2021 to the Presiding Magistrate entitled “Letter of Apology”. The Applicant seeks to explain his conduct after apologising for the offence which has brought him before the Court and relevantly states:
I have been experiencing hallucinations and delusions for quite some time. I often hear voices in my head telling me to do certain things. I have never taken my mental health seriously until the commission of these offences. I have only ever taken medication to assist with the symptoms however, the voices were still present.
On the night of the offence, my intention was to only have a few drinks with some of my work colleagues due to my unstable mental health. Two weeks prior to the offence my thirteen year old daughter had gone missing from her mothers [sic] home which caused me to be in a severe state of mental health stress and depression. Due to my low state of well being my work colleagues had organised a special night out for me. I did not intend to hurt anyone. I have limited blurred recollection of the night of the event. I can only remember walking into the venue but I have no memory of leaving the venue at all.
I hold many responsibilities as an active member of the community. Since the age of sixteen I have been in the workforce as a construction worker and tax payer. I work most of my time so I do not usually socialise in public with others as I am also a Father of three daughters. I always try my best to uphold my responsibilities by going to work, maintaining a career and always being there for my children.
The Applicant has been diagnosed with schizophrenia. Despite receiving treatment, he reports continuing to struggle with symptoms of schizophrenia and his psychologist has recommended that his medications be reviewed.
The Tribunal cannot be certain that the Applicant will not re-offend as a result of his ongoing mental health issues.
The Tribunal also notes that the Applicant had the support of his uncle and his brothers, and that such support was not sufficient to prevent him from offending, although the offending was mainly the result of excessive alcohol consumption, which is discussed more fully later in this decision.
Finding on Primary Consideration 1
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation.
PRIMARY CONSIDERATION 2: WHETHER THE CONDUCT ENGAGED IN CONSTITUTED FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The conduct of the Applicant has included offences against a family member. The Applicant was originally placed on an apprehended violence order on 8 January 2010.The Applicant was placed on a further apprehended violence order on 8 July 2015 for two years. He breached this order on 20 January 2016 when he used a vehicle to follow his ex-partner. He was later convicted of assault occasioning actually bodily harm, destroying or damaging property and common assault as result of a physical altercation with his twin brother. The Applicant was clearly warned not to engage in domestic violence by the Court. The victim has not pressed charges for the assault and no injuries resulted.
Finding on Primary Consideration 2
While the Tribunal acknowledges the extent to which the Applicant accepts responsibility for his conduct, understands the impact of his behaviour, and his rehabilitative efforts to address his behaviour, it finds that this consideration weighs against revocation.
Primary Consideration 3: the Strength, Nature and Duration of Ties to Australia
Primary consideration 3 requires a decision-maker to consider any impact of the decision on the non-citizen’s immediate family members in Australia (see paragraph 8.3 (1). Further, pursuant to 8.3(4)(a) the decision-maker must consider the length of time the non-citizen has resided in the Australian community, noting that considerable weight should be given to the fact that the non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending.
The Tribunal notes that the applicant has resided in Australia for 26 years. He completed his education in Australia, has been employed in Australia, and claims to regard himself as a “proud Australian”. The Applicant’s three daughters and two brothers reside in Australia, as do his half-sister and uncle. The Applicant states that he and his brothers have been on their own since the Applicant was 18 years of age, as a result of their mother leaving Australia, and their father passing away. He states that should he leave Australia, they would have no means to visit him, and it would impact greatly upon all of them if they could not remain in close contact. The Applicant further states that his brothers provide strong support for him and for each other. The Tribunal provides a summary of the Applicant’s statement of facts, issues and contentions, to set out the necessary factual background of the Applicant, as follows:
1.The applicant was born in Fiji in 1990 and arrived in Australia when he was 5 years old with his two brothers and mother. His father arrived in Australia the previous year. The applicant’s early life history is set out by him in a letter at Respondents Bundle (RB) p186-196.
2.The family initially settled in Melbourne and the applicant was enrolled in [primary school]. The family then moved to Canberra where they stayed with family. Then they moved to Miranda. The applicant attended [public school].
3.The applicant’s parents went through a divorce. The applicant and his brothers stayed with their mother in [a caravan park] and the applicant’s father was in Woolaware.
4.The applicant’s mother then moved with the three boys to Acacia Ridge in Brisbane. The applicant attended[primary school]. For a few months they lived with a friend of their mother near Gladstone.
5.The applicant’s mother sent the applicant and his twin brother Isikeli to live with their father in St Marys. The applicant started year 4 at [primary school]. Once he was old enough he went to [high school in Colyton].
6.The applicants mother returned to Sydney with the applicant’s younger brother Moses in 2001.
7.The applicant’s mother moved to Canada in 2002.
8.Constantly moving homes disrupted the applicant’s schooling and ability to establish friendships.
9.As a child, the applicant was heavily involved in a range of sporting and cultural activities such as basketball, rugby, soccer, cross country, music and cultural dancing.
10.As a teenager, he excelled in Rugby and won a number of State Championships. He obtained a contract to play for the Colyton Colts.
11.In 2005-2006 the applicant formed a relationship with Amanda Hicks. He lived with her family as he had a falling out with his father. They had a child [TJH born June 2006]. The applicant left school. The couple had another child [SMT born July 2007] and a third – [SRT born May 2009]. All these children are Australian Citizens as their mother is an Australian Citizen.
12.The applicant’s brothers and his father moved to Ashcroft.
13.The applicant obtained employment in a factory.
14.The applicant was still living with Amanda Hicks parents. However her parents separated and the applicant and Amanda and their children moved from one parent to the other.
15.In 2008 his father passed away from bowel cancer.
16.The applicant obtained employment as a builder’s labourer.
17.In December 2009 the applicant and Amanda finally moved to a place of their own in Mt Druitt. However soon after they separated.
18.The death of his father had a severe impact on the applicant. He abused drugs and alcohol. In 2010 he was convicted of a number of offences which led to him being imprisoned from April 2010 to May 2011.
19.On 10 March 2011 he completed Program: Getting SMART (RTB p291) He completed courses in RSA on 11/4//2011 (RTB 293), Health Survival Program on 21/4/2011(RTB 294) Asbestos demolition and he obtained a forklift licence (2/5/2011 RTB p295).
20.On 6 May 2011 Daniel King of Correctional Services recorded [the Applicant] has been working for me in Maintenance for a while now and his work ethic is always great. He is always keen to work and puts in a big effort every day. Polite Inmate who causes no problems and puts in 100% to all jobs given to him. (RTB 299)
21.On 1 June 2011 the applicant was released from prison (RTB p299). After release from prison he was on parole for 7 months. His response to supervision was deemed as satisfactory (RTB p149). He continued working in the construction industry.
22.After his release from prison he lived with his twin brother Isikeli and his family. This included [IJIT and HCMT] who were infants at the time. He stayed with the family until the eldest was 3 years old. Mosese [sic] was also living there. The applicant continued to live there with Mosese [sic] even when the couple separated and Isikeli moved out.
23.In around September 2013 the applicant moved to a room at 18 Lyton Street Blacktown where Isikeli lived. Isikeli subsequently moved out, but a family friend Moera Sakimi moved in. The applicant and Moera shared the flat together for a few years. Moera was a good influence on the applicant and was very supportive. The Applicant kept out of trouble at this time.
24.In 2014 the applicant commenced a relationship with Violet. The applicant moved in to the granny flat at 18 Lyton Street with Violet.
25.The applicant and Violet moved to a place in Canley Vale in about 2016. In about 2017 Violet moved out.
26.The applicant, Mosese [sic] and Isikeli rented 18 Bareena St Canley Vale in 2017 where they lived together until 2019. Isikeli then moved to Merrylands and the applicant moved with him.
27.The applicant was attending church weekly. More recently he was bringing [SMT] with him. They played together on the church Oztag side. The applicant was employed in the construction industry as a form worker for the period 2011 to 2020.
28.From August 2012 the applicant started to volunteer his time for Pasifika Achievement to Higher Education (PATHE) Initiative at Western Sydney University (WSU) in the capacity of Project Manager with community events). In addition, he also was a part of talanoa sessions that aims to support Pacific young people and community members to become more aware of issues around mental health and wellbeing. The sessions provided an opportunity for students and volunteers to help support each other in a culturally safe space and create opportunities for others to lead and facilitate discussions that were meaningful to them. [The Applicant] co-facilitated our session with his twin brother Isikeli Tavola on Postcode/Racial Violence and Discrimination.
29.The applicant also took part in a number of Community events through the Street University in Liverpool. These events included dancing in Fiji Day Celebrations on October 10 every year. There were also multicultural celebrations held at Casula Powerhouse. We also took part in the intensive programs as part of the Fijian Youth Initiative. These programs were conducted at the Outreach Centre in Parramatta.
30.The applicant became mentally unwell about 2018 and he was voluntarily admitted for about 2 months in Liverpool Hospital.
31.When he got out of hospital he moved in with his uncle Samu Waqabaca. The applicant lived with his uncle for a few months (G17 p109). During this time he bonded with his uncle’s youngest son [JW]. [JW] is 7 years old now. The applicant also bonded with his middle son [EW] and they were very close. Unfortunately [EW] passed away at the end of 2021.
32.In 2020 Isikeli found a new partner and he moved to Parramatta. Isikeli moving out meant that the applicant was living by himself when the COVID pandemic struck. For most of 2020 the applicant was unable to be with any of his family. Nevertheless he participated in online group rehabilitation with Odyssey House through this time. He also attended counselling sessions with Pierre-Louis Lamarque who developed a mental health plan for the applicant. He attended AA and participated in an anger management course.
33.In 2020 His daughter [SMT] also came to live with him.
34.In November 2020 the applicant went out with his workmates after work and committed the offence for which he was jailed.
35.After he was charged the applicant was granted bail. While he was on bail he took part in a mental health plan. As part of that plan Isikeli’s former partner agreed that the applicant and [SMT] could come and live with her family in Newcastle. She has a new partner and they have 4 children in addition to the 2 children she had with Isikeli.
36.When he got back from Newcastle the applicant and [SMT] moved to 34/22 Newman Street Merrylands. Moses lived with him there but moved out soon after.
37.On 19 August 2021 psychologist Pierre Louis Lamarque provided a report to the sentencing Magistrate which said that (G 18 p128). The scores obtained by [the Applicant] on both sets of measures indicate that he experiences a range of symptoms commonly observed in Individuals suffering from a Psychotic Disorder. [The Applicant] experiences positive symptoms as well as negative symptoms. The positive symptoms include delusions as well as auditory hallucinations, the negative symptoms include social withdrawal, depression, poor quality sleep, flat affect, and anhedonia. [The Applicant] also experiences depression as well as anxiety in relation to his mental state and his future.
The Applicant’s relationship with his brothers
The Tribunal was impressed by the oral evidence provided by the Applicant’s two brothers. Such evidence demonstrated that the family is particularly close to one another. The closeness arises from the fact that the Applicant and his two brothers came to Australia at a very young age; that their mother left them to live in another country when the Applicant was only ten years old; and that their father passed away some years later. Accordingly, through such adversity, the brothers had become unusually close. Such closeness is reflected in the fact that the Applicant’s brother Isikeli has allowed the Applicant to live with him and his family on various occasions, and that fact that Isikeli has looked after the Applicant in subsequent years.
Statement of Isikeli Tavola, the Applicant’s brother
The Applicant’s brother Isikeli provided a letter dated 20 April 2023. In it, he testifies as to the Applicant’s ability to work hard and refers to their tumultuous upbringing and how they have supported each other and their brother Moses. He refers to the Applicant’s close relationship with his children. He states that between 2019 and 2021, he attended church with the Applicant and SMT two to three times per week. He also states that during this time the Applicant avoided “bad influences”, namely a group of people with whom they attended school who are heavy substance users.
Isikeli states that the Applicant committed the offence in 2020 during a period of severe stress and anxiety after going out for drinks with his workmates.
Statement of Moses Tavola, the Applicant’s brother
The Applicant’s brother Moses provided an undated letter. He states that he has lived with the Applicant on and off since 2010, for a total of nearly six years. He observed the Applicant’s daughters “always seemed to love being with [the Applicant]” and that his daughter SMT visited him weekly.
The Applicant’s community contribution
The Tribunal notes that the Applicant has participated in many community organisations, and has performed services for the community through his involvement in cultural programs, as detailed below.
Letter from Charlie Fruean, Case Manager, South-Western Multicultural and Community Centre
Charlie Fruean, Case Manager, South-Western Multicultural and Community Centre provided a letter of support dated 15 August 2017. He states that he met the Applicant when he volunteered his time to assist with their programs targeting “at risk” youths from the Liverpool and Campbelltown regions. He states relevantly:
…[the Applicant] is a very talented individual. He demonstrates a high level of maturity and has a positive outlook in terms of his assistance within our internal programs. He has the attributes of a humble but positive strong leader, always putting others before himself and giving service when needed. [The Applicant] has played a major role in supporting young people to change the course of thinking to a positive pathway through his leadership attributes.
I believe that his court appearance is totally out of character and that he has personally disclosed to me his embarrassment and shame that he is placed upon his family, friends and extended support networks. Which he is deeply remorseful for...
Letter from Mal Fruean, Coordinator, South-Western Multicultural and Community Centre and Chairperson, NSW Council for Pacific Communities
Mal Fruean, Coordinator of South-Western Multicultural and Community Centre and Chairperson of the NSW Council for Pacific Communities, provided a letter dated 16 August 2017. She states that she had known the Applicant for the previous ten months on a professional and personal level and relevantly states:
He has participated in many of my community programs when he was in his youth and young adult years. I have seen this young man mature into a caring and giving young adult with a bubbly personality. I confirm that in my experiences with [the Applicant] have been very positive.
The Applicant’s work history
The Tribunal also notes that, for the most part, during his period in Australia, the Applicant has been employed and that a job awaits him if he is permitted to remain in Australia.
The work references from previous employers, detailed below, speak highly of his work ethic.
Letter from Steve Dench, Site Manager, Richard Crookes Constructions
Steve Dench, a Site Manager of Richard Crookes Constructions, provided a letter dated 2017. He confirms the Applicant had worked for the company for the prior four months and states that the Applicant:
…is a good reliable worker, he is [sic] communicates well and gets on with everyone on site. [the Applicant] has work for the foreseeable future and I will need him on site every day.
I would be very happy to vouch for [the Applicant) for both his character and work ethic…
Letter from Mansour Hawa, Operations Manager, Iconic Structures
Mansour Hawa, Operations Manager, Iconic Structures, provided a letter of support dated 22 March 2023. He states he has known the Applicant for the last five years and describes him as “the most humble and respectful worker in the jobsite whenever I have had him on my sites.”
He acknowledges the Applicant’s past mistakes but states:
…we are a family-based company and family always come first. I mended his work hours to suit his daughter’s school times he was starting later and finishing early so he could be the father figure she was lacking.
In that brief time [the Applicant] worked harder and showed his gratitude, he was bubbly and inspired at work to be a role model.
The letter states that if the Applicant is released, the writer will personally place the Applicant on a project in King Street Sydney which will continue for 12 months. The worksite has a zero-alcohol policy the Applicant would be required to pass a breathalyser test every morning, six days a week.
The Tribunal notes that, at the hearing, the Applicant gave oral evidence that the costs of his application before the Tribunal were being born by Iconic Structures. The Applicant contends that this demonstrates that he is a valued employee.
Other evidence in support of the Applicant
Letter from Johnny Nguyen, Pastor, Potters House Christian Fellowship
Johnny Nguyen, Pastor of the Potters House Christian Fellowship, provided an undated letter of support. He states he has known the Applicant for about three years and is willing to be a support/mentors/role model for him. He speaks of the success which his Ministry has had in rehabilitating and immersion people back into society. He states: “I will endeavour to do my utmost best to see this man be restored and I look forward to all that he will be accomplished through his life.”
Finding on Primary Consideration 3
The Tribunal finds that this consideration weighs in favour of revocation of the decision under review.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.4(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
(a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));
(b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));
(c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
(d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
(e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.4(4)(e));
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.4(4)(f));
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.4(4)(h)).
The Applicant has three children in Australia namely TJH (aged 17); SMT (aged 16); and SRT (aged 14). The children reside with their mother. The Applicant claims that he has a very close relationship with them. The Applicant states that before he was imprisoned in late 2021, his daughter SMT resided with him. He states that SMT went missing and he was so distressed that his workmates took him out and he became drunk, which led to his latest offence.
While SMT was living with the Applicant, he states that his other daughters would come and visit him at his home and sometimes he would see them during the week, and sometimes on the weekend. The Applicant states his relationship with his daughters is important to him and that when they were younger, they would spend weekends at his house from Friday to Sunday, usually every second weekend. They would have outings to the shops or the cinema. He took them to the Easter show many times. He states that when he was in a dancing crew, he would take the children out to his shows. As the children grew older, TJH and SRT “grew out of it” but his middle daughter, SMT, always wanted to go out with him. For this reason, the Applicant and SMT have a very special bond, and they enjoy many activities together. He states he took her to Newcastle to see their cousins on one occasion.
SMT provided a statement that when she was having differences with her mother in in 2021, she resided with her father. She states that the Applicant wanted to ensure that she had a good education and when she had difficulty at school, he helped her transfer to a new school and helped her with her homework. SMT stated she was living with the Applicant prior to his arrest and incarceration. She states that she has felt lost without him and has lost motivation for her schooling.
In her statement, SMT states that on weekends, she and the Applicant would go to church and their faith is very important to them. They also spent time with their uncles and cousins. SMT says that her father makes her so happy and motivates her to be ”on the right path”.
TJH also provided a statement. She states that the Applicant would always spend time with her and her sisters, even though their parents had separated. She states that on weekends the Applicant would organise different activities and family events, and that they spent time with their uncles (Isikeli and Moses) having family lunches or playing sports together. She states that she and the Applicant have a strong bond and he supports her in everything she does. She states that she misses her father due to his incarceration and requests that the decision be set aside so that the Applicant can continue to guide and support her and her siblings. She states that she has many happy memories with her father and that she always felt loved and safe with her father.
The Applicant claims that Isikeli’s two infant children could be affected if the Applicant were removed. They reside with their mother in Newcastle. The Applicant claims to have kept in contact with them during his incarceration and has visited them on a number of occasions.
The Applicant also claims to be close to his uncle’s son, JW, and that when the Applicant was rehabilitating following his hospitalisation in 2018, he resided with his uncle and formed a bond with JW, who is now seven years of age.
The Applicant claims that electronic communications would not be an effective substitute to maintain his relationships with his family, as he finds it difficult to hold conversations over the phone, particularly on matters which his daughters do not wish to discuss by phone.
Natalie Chiappazzo, a Service Provision Manager for the Blacktown Youth Services Association, provided three references in support of the Applicant. The first reference is dated 1 February 2022 and states that the Applicant has been a dedicated father and provider and that his removal from Australia would remove his daughters’ “primary caregiver” and create significant trauma. Ms Chiappazzo states:
[The Applicant) is the father of three young children and is very involved in all aspects of their lives. He is a hard-working man dedicated to his job in providing for his family. His children rely on him to provide financial support to meet their basic needs such as housing, food and education. She states that the applicant is the “primary caregiver, he takes pride in instilling positive morals and values in his children. He spends time taking into church and volunteering in the community.
Additionally, she states that the Applicant takes pride in instilling positive morals and values in his daughters and that his removal would have a detrimental effect on his daughters and may result in them becoming “homeless or within the child protection system”.
In a letter dated 24 March 2003 Ms Chiappazzo states:
In their short years of life, [the Applicant’s] children have already been impacted by significant intergenerational trauma and disadvantage. Statistically, they are part of the two thirds of children who have experienced trauma before the age of 16. However, these children are more than a statistic. They are human beings are entitled to and protected by human rights mandated by the Convention on the Rights of the Child . I do not believe the rights of the children have been taking into full consideration when making the decision to deport [the Applicant].
Ms Chiappazzo states that she did not consider that the Applicant’s children’s rights are being adequately considered, and that the children will experience severe psychological impacts including increased stress, anxiety, abandonment and attachment issues, depression and behavioural changes if the Applicant is removed from Australia. She also states that “in my expert opinion, it is not in the best interests of the children if [the Applicant] was deported”.
The Tribunal notes that Ms Chiappazzo is not a psychologist and has no qualifications to provide a psychological opinion. Further, in cross examination, she stated that she saw the Applicant over approximately eight years only “a couple of times a year”.
Ms Chiappazzo, in a further letter dated 15 April 2023 states inter alia:
My fear is that [the applicant’s] daughters will follow the same cycle if [the Applicant] has to leave Australia…It would be far more in his daughter’s best interests to continue to have an in-person relationship with [the Applicant] despite the challenges he faces. I believe that maintaining his personal relationship will play a critical role in protecting his daughters from being a victim of the intergenerational cycle of trauma.
Finding on Primary Consideration 4
The Tribunal accepts that the Applicant has a close relationship with his minor children, even though he was not necessarily living with them prior to his incarceration (except for SMT). Revocation of the decision would permit the children to be supported both financially and morally.
The Tribunal considers that the best interests of the children weigh in favour of the revocation of the original decision.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 99. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 99.
It has further been held that the consideration is “in substance…adverse to any applicant” see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Applicant’s history of offending has extended from 2005 to 2021. Whilst the Applicant asserts there is a period of ten years between 2010 and 2021 when he was not convicted, this does not accord with the record. The level of seriousness of the offending is increasing.
The Applicant has had numerous warnings that his lifestyle would need to change.
On 20 April 2011, the Department of Immigration and Citizenship provided a warning letter that the Applicant’s visa might be cancelled. The Applicant acknowledged, on 26 May 2011, that he had received such warning. However, the warning has had little effect as the chronology of offending records that the Applicant engaged in further offending from September 2014 and thereafter to 2021.
The more recent offending of the Applicant involved an unprovoked assault on a stranger. The Tribunal considers that such conduct is inimical to the Australian community.
Many of the offences have involved the use of a motor vehicle and driving whilst disqualified. Whilst motor traffic offences, of themselves, may not seem to be significant, the repeated offending of this nature indicates a disregard for the Australian law: see MJNN and Minister for Home Affairs [2019] AATA 3205 at [54]-[55]; see also Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 [43]-[45].
Finding on Primary Consideration 5
Therefore, the Tribunal accepts that the Australian community’s expectations weigh against revocation of the decision.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
Legal consequences of the decision
If the Tribunal were to affirm the decision under review, the Applicant would most likely be returned to Fiji. Such a course would have the benefit of removing from Australia a person who has shown a propensity for violence, aggression, alcohol addiction, and disdain for the laws in Australia. On the other hand, this would have a very detrimental effect upon the Applicant, as the medical facilities required by the Applicant are not as readily available in Fiij as they are in Australia, as discussed below.
The Tribunal finds that this consideration is neutral.
Extent of impediments to the Applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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 non-citizen’s age and health
The medical evidence establishes that the Applicant has a mental health issue which requires treatment. If the Applicant can be successfully treated, then there is no reason why he cannot be a valuable member of society in Australia. In this respect, the Tribunal notes that the Applicant has completed several courses whilst incarcerated and has registered for upcoming courses designed to address his alcohol addiction. Unfortunately, the Tribunal does not have the medical evidence relating to his period in mental health units in various hospitals. However, the two psychiatric reports establish that he is suffering from a condition which can be treated.
The relevant medical evidence is set out below.
Liverpool Hospital
Records of the South-Western Sydney Local Health District record that the Applicant was diagnosed with psychosis on 16 June 2019 and presented with auditory hallucinations; persecutory delusions, bizarre somatic delusions; ideas of reference; disordered thought form, psychomotor agitation, insomnia and poor insight and judgement. Similar entries are recorded on 28 June 2019.
Report of psychologist Pierre-Louis Lamarque, dated 19 August 2021
Pierre-Louis Lamarque’s report dated 19 August 2021 records that the Applicant visited him on 17 June 2021 with a request for a mental health assessment to produce to the presiding Magistrate of the Liverpool Local Court following assault charges. The report indicates that the Applicant has used marijuana for many years and started using methamphetamine before the age of 18 years. It records that the Applicant hears voices, telling him he is going to jail, and that he suffers high levels of anxiety and his scores on measures of depression are in the moderate to severe ranges. He reports that the Applicant had used alcohol and illegal drugs for different periods of time and from young age.
Mr Lamarque made the following findings:
(1)That the Applicant meets the DSM-5 criteria for schizophrenia with multiple episodes. He is in partial remission. The Applicant experiences delusions and hallucinations. His level of functioning in the areas of interpersonal relationships, work and daily living is low in and his overall functioning is significantly impaired;
(2)The symptoms experienced are not due to any other mental health condition. They have been occurring uninterruptedly for the past 12 months, irrespective of the Applicant’s pattern of drug use. The Applicant had been abstinent for a total of 11 months within the previous 12 months. The Applicant has had multiple admissions to mental health units in the Sydney metropolitan area.
(3)The Applicant used alcohol and drugs from a young age, and they are part of a set of maladaptive mental health coping strategies which he employs. In combination or by themselves, they have the effect of significantly diminishing the Applicant’s abilities to see through his delusions and not to respond to hallucinations of command. This means that during periods of intoxication, the Applicant’s delusional part of his personality is in charge and drive the response to misinterpret events and in a manner that includes physical violence;
(4)At the time of the offence it is unlikely that the Applicant understood the consequences of his actions.
The report concluded that the Applicant needs to have his medications reviewed by psychiatrist and have a mental health worker allocated to him. His compliance with his psychiatric treatment has, at times, not been good.
Significantly, the psychologist stated that the Applicant has committed offences before and is likely to reoffend again if he lapses in his efforts to keep up his abstinence regime and psychiatric treatment:
I am of the opinion that [the Applicant] is capable of making significant improvements in his life and prospects if he continues with his psychiatric treatment and refrains from using illegal substances and alcohol.
Report of psychologist Pierre-Louis Lamarque, dated 19 April 2023
On 20 April 2023 the psychologist interviewed the Applicant by telephone for a mental health assessment to be produced to the Liverpool Local Court following assault charges. He reported as follows:
…[the Applicant] is able to function at a high level and in a safe manner as long as he abstains from substances and alcohol and continue complying with the treatment of his mental illness with anti-psychotic medications and regular visits to supporting specialists and treating doctor.
[The Applicant]’s psychiatric treatment as a greater likelihood of lapsing should he have to leave Australia as he would be unlikely to be able to afford medications in Fiji and would struggle to adapt and find work as he has limited connections there. [The Applicant] has not coped well during crises and tends to resort to maladaptive coping strategies in times of extreme difficulties. It is likely that a return to Fiji would be detrimental to his mental health and lead to a harmful cessation of his psychiatric treatment and efforts to look after his mental and emotional health.
[The Applicant] has relied heavily over the years on the support of his brothers, particularly his twin brother (named) although they are not able to visit him at the detention centre they have been in regular contact and provide emotional support. The emotional support [the applicant] gets from his brother is a significant factor in his likelihood to reform himself, continue taking care of his mental health, continue to abstain from substances, regain his financial dependence and resume his responsibilities as a father.
As to the impact upon his family, the psychologist refers to the fact that the Applicant is frightened that the impact of his departure on his brothers and daughters would be very significant. The report concludes:
Dear Members of the Administrative Appeals Tribunal, I am of the opinion that [the Applicant] is able to do well as he has good support in Australia. Being sent back to Fiji would be significantly detrimental to his mental health and in all likelihood lead to an estrangement from his family, loss of necessary emotional support, and a major psychotic relapse.
Oral evidence of psychologist Pierre-Louis Lamarque
In oral evidence to the Tribunal, Mr Lamarque considered that the Applicant has a mental health issue independent of his drug and alcohol addiction. Mr Lamarque noted that the consumption of methamphetamine can cause permanent problems and permanently affect mental health. He deferred to the observations of a psychiatrist with access to more current information as to the nature of the Applicant’s psychotic symptoms.
However, he stated that when he saw the Applicant in 2021, the Applicant was hearing voices and “actually quite psychotic when he was seeing me, and I don’t believe he was under the influence then.” Mr Lamarque added: “…I believe he’s got a mental health condition which is independent of his drug and alcohol use.”
Psychiatric reports, International Health and Medical Services (“IHMS”)
A psychiatrist engaged by the IHMS examined the Applicant on 6 August 2022. The report recorded a history of drug-taking and alcohol consumption since the Applicant was aged 15. There is a reference to the fact that the Applicant was admitted to a mental health units:
Was admitted for a month (but only a few days and appear)…It was just to get off the crystal methamphetamine… Says he was diagnosed with psychosis… Says he stayed on Olanzapine until 2019 when he started going to church.
The report states that the Applicant denied any psychotic symptoms since he stopped using illicit drugs; the Applicant was not at that time on any medication; and the Applicant gets “angry very easily, although he already had an anger management course while in gaol”.
The Applicant was again examined on 17 February 2023 by a psychiatrist engaged by the IHMS. The psychiatrist diagnosed the Applicant as having a substance use disorder and drug induced psychosis which was resolving. He recommended that the Applicant continue on his course of Olanzapine, a medication used to treat schizophrenia.
IHMS records dated 2 August 2022 record no delusions or psychotic symptoms; no perceptual disturbances; and that the Applicant was not suicidal. A history of substance induced psychotic disorder as well as amphetamine and alcohol dependence was recorded.
An IHMS entry dated 8 February 2023 refers to a report by the Applicant that he was diagnosed with schizophrenia before his incarceration and that he was taking Olanzapine to address his condition. He commenced using drugs at age 15 and reported daily use of cannabis, that he used to smoke methamphetamine on weekends, and that he has been smoking methamphetamine up to three days previously. The Applicant is also taking the medication Mirtazapine. It is not known who prescribed this drug, but Pierre Louis-Lamarque provided oral evidence that Mirtazapine is an antidepressant.
In addition to the above, the Applicant has provided evidence of his efforts to address alcoholism through rehabilitation. A Certificate of Completion dated 17 June 2022 entitled ‘High Intensity Program Unit’ certifies that the Applicant has completed the following courses: RUSH/CONNECT; EQUIPS Aggression; EQUIPS Foundation; EQUIPS Addiction; EQUIPS Domestic and Family Violence; NEXUS; and In-Call Activities. Another Certificate of Completion dated 2 February 2022 certifies that the Applicant has satisfactorily completed the Roads and Maritime Services Class C DKT conducted by Corrective Services NSW.
The Applicant has also completed various programs, detailed below.
Odyssey House SMART Recovery Program
Odyssey House runs a program called SMART Recovery.
A letter dated 6 September 2021 addressed to the Presiding Magistrate establishes that the Applicant had been assessed and engaged in a non-residential treatment program at Odyssey House; treatment commenced on 8 July 2021; and the Applicant had attended on seven occasions in respect of courses related to thinking skills, staying present, and building resilience.
The Applicant also provided evidence that he has registered for SMART Recovery meetings, to be held by Zoom, on 3 April 2023 and 10 April 2023. The reservation states, inter alia:
SMART Recovery is a self-empowering program that helps people to achieve independence from addictive behaviours. Online SMART Recovery meetings use evidence-based tools to enable people seeking to change and self-manage any kind of addictive behaviour, most commonly related to alcohol, drugs, gambling, cigarettes, food, technology etc.
The Applicant gave oral evidence that he had completed the SMART Recovery program twice and is undergoing the program a third time.
Letter from Mark Henson, Gambling Counsellor, Oakdene House Foundation
Mark Henson from Oakdene House Foundation provided a progress report dated 23 August 2017 for their Life Choices program. The report records that the desired outcome of the program is that attendees will come to accept and identify their problem with alcohol and/or gambling and learn to manage their lives in such a way that alcohol and/or gambling no longer cause issues in their personal life. At that time, the Applicant had completed one session of the six-week program and continued to attend one-on-one counselling with a counsellor.
The Tribunal also notes Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2985 (“Edwards”) in which the Tribunal extensively considered instances of Applicants who, whilst having a poor record of offending, were also suffering from mental illness: see paragraphs [137]-[139]. In Edwards, the Applicant was found to be suffering from schizophrenia. The same diagnosis has been made in the present application. In Edwards, the Tribunal referred to a prior decision of Vazquez and Minister for Immigration Local Government and Ethnic Affairs [1989] AATA 165. In that decision reference is made to the observations that the Tribunal should include, in the best interests of Australia, an element of compassion.
The compassion which might be extended to the Applicant in this application only arises because the evidence of the psychologist indicates that he is suffering from a mental illness which is independent of his drug and alcohol abuse. However, the Tribunal notes with concern the fact that the Applicant has consumed illicit drugs whilst in jail and whilst in detention, and as recently as February 2023.
Substantial language or cultural barriers
The evidence received by the Tribunal suggests that the Applicant does not understand the language in Fiji. However, since English is widely used in Fiji, the Tribunal draws no inference that the applicant would not understand the language in that country.
Any social, medical and/or economic support available to the Applicant in Fiji
The social, medical, and/or economic support available to the Applicant if he were returned to Fiji would not necessarily be similar to that applicable in Australia. For example, the Applicant provided evidence that there are only five psychiatrists in the whole of Fiji. The evidence establishes that the Applicant is in need of psychiatric treatment. As the Respondent correctly pointed out in submissions, Suva has a psychiatric hospital known as St. Giles. A 24-hour, seven-day toll-free counselling helpline is available both in Suva and in the West of the island.
Unfortunately, the Tribunal does not have comprehensive medical records. There is some evidence that the Applicant spent four months in hospital, but no such records are before the Tribunal. However, it is clear that he was admitted in June 2019 for psychosis to Liverpool Hospital and again in December 2019 when he believed that someone was trying to kill him. The Applicant attended a police station in the early hours of the morning to make this statement. He admitted having taken methamphetamine and was admitted to Nepean Hospital on 14 December 2019.
The Applicant’s half-sister, Birista Radalau Kuruvoli, provided a letter dated 12 April 2023. She states that she is 56 years old and that it would be upsetting and devastating if the Applicant were required to leave Australia, since he has lived here all of his life, his family lives here, and his support system is in Australia. She states that Fiji would not be a good place for him because the culture is different; the Applicant cannot speak the language; and he has nowhere to stay there. She states that Fiji is a developing country where there is financial hardship, heavy rainfall and insufficient work. She states that mental health support is lacking in Fiji and that the Applicant would have little support. She stated she remained in Fiji for an extended period during the COVID pandemic between 2020 and 2022 and that she fears for it the Applicant’s life if he were returned there.
The Tribunal considers the medical support available subsequently in this decision. With regard to support available, it appears the applicant has an extended family living in Fiji although he has never met them since he left Fiji aged five years of age.
The Tribunal finds that this consideration weighs in favour of revocation.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The purpose of this consideration is to determine whether there is evidence that any decision would impact upon any victim: (see HVLC v Minister for Home Affairs [2019] FCAFC 204 at [27]. In this application, there is no such evidence and accordingly this consideration is neutral.
Impact on Australian business interests
This consideration is relevant in the sense that the Applicant has been offered employment and is a valued member of the workforce of a construction company engaged in building operations in Sydney. The company offering employment has met the cost of the application before the Tribunal to provide the best chance of the Applicant being able to remain in Australia and to renew his employment with them.
The Tribunal finds that this consideration weighs in favour of revocation.
OBSERVATIONS
The criminal record of the Applicant, per se, would indicate that the Applicant should no longer remain in Australia. His conduct has been inimical to Australian law. However, the Tribunal takes into account the following considerations:
(1)the Applicant is mentally unwell; it appears he has been so for many years; and his condition has not been thoroughly treated;
(2)His drug and alcohol use may have resulted from the fact that he and his brothers had been on their own since the age of 18 when their mother left Australia in 2002, and the death of his father in 2008; and
(3)that his offending has often resulted from his abuse of alcohol.
The Tribunal must consider the future and determine whether there is a real risk to the Australian community if the Applicant were permitted to remain in this country. The discretion is to be exercised looking forward, rather than backward and it concerns the future, not the past: see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [192]. The Applicant has already been punished for his offending and the Minister cannot regard the cancellation of the visa is a form of punishment for past events: see Folau v Minister for Immigration and Border Protection [2016] FCA 1149 at [11].
Unfortunately, the expressions of contrition of the Applicant that he is now a changed person and will in effect be law-abiding in the future carry little weight when, in response to the warning letter provided to him by the Department on 26 May 2011, the Applicant completed a Personal Circumstances Form which stated, inter alia:
Provide information on what you believe to be the risk of you offending in the future and your supporting reasons
There won’t be any more crime for me, I can promise and guarantee the statement. I have given my life to God and choose to live in a righteous path, with my daughters to be a good parent and a good person. Since I have been baptised in the Church of God, alcohol and drugs will no longer be a part of my life in the future as I will continue to be involved in the church and church activities. I plan to continue my faith God, to be a good role model for my three Australian daughters and turn my life around with no more crime and jail.
Clearly, the subsequent criminal offending of the Applicant demonstrates that such statements cannot be relied upon, and the Applicant’s current statement appears to be merely a repeat:
If I’m given the chance to stay, I will not waste that chance. Not this time, I plan to have S live with me again. I plan to give all my daughters the support they need. My daughters are the ones that keep me going, and I know that I have so much to make up for. I am willing to put in the work for the lost time, in giving up the drugs and alcohol for them, so that I can better father for them. They are what drives me.
The Tribunal is also mindful that the Tribunal’s task requires “bringing appropriate perspective and proportionality to bear in the assessment of risk”: see Weti-Safwan and Minister for Immigration and Border Protection [2016] AATA 797 at [50].
The Tribunal must determine and weigh up all of the circumstances both for and against the application (see Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91]. Further, no legally reasonable conclusion concerning the seriousness of an offence can be determined without informative details of the actual circumstances involved. In this application, the offending has resulted mainly from alcoholism with an underlying mental condition, and these are highly relevant factors.
In Hands v Minister for Immigration and Border Protection [2018) FCAFC 225 at [3] Chief Justice Allsop observed:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expressions. Mechanical formulaic expressions and pre-digester shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
There is a risk that the Applicant may offend again if he does not comply with the courses and treatment available to him. But the Australian community is not entirely intolerant of risk: see Labi and Minister of Immigration and Border Protection (Migration) [2016] AATA 316 at [60] where the Deputy President stated:
The Direction [extant] points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgement. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
The Applicant knows that if he is afforded a second opportunity to remain in Australia (the first being in 2010 which is now 13 years ago), it will undoubtedly be his final opportunity, and any further transgression will almost certainly result in the cancellation of his visa. The question is whether the risk is one which can be minimised. The available treatment; the courses he has undertaken; and the support of his brothers, particularly Isikeli, will help to minimise that risk. The Tribunal notes that Isikeli has offered accommodation to the Applicant should he be released, as he has done in the past.
The Tribunal also notes that the Applicant was baptised after he was charged for his last offence, although the Tribunal notes that in the Personal Circumstances Form, which the Applicant completed in 2011, he stated he had been baptised. Whether such course was taken as a symbol of remorse or whether it was hoped that such a course might result in a lesser sentence being imposed, is unknown. However, the Applicant does apparently seek to adhere to his religious principles at least since 2020. Such principles may not be effective to prevent the Applicant offending again, bearing in mind he was first baptised in May 2011.
The alternative, namely cancellation of the visa, would result in the Applicant being returned to a country which he does not know. He was five years old when he arrived in Australia and has not left Australia since his arrival. All his schooling has been in Australia. Whilst he has relatives residing in Fiji, the Applicant has no memory of them and has no contact with them. His qualifications as a construction worker may be of little practical use in Fiji if there is no construction work available. Significantly, the medical health services in the medical specialty of psychiatry are significantly less than those available in Australia.
If the Applicant were returned to Fiji, such course would in effect condemn him to a life away from his children, brothers, uncle and other family members. The Applicant is clearly in need of the support of family and medical support of a specialist kind, which is available in Australia.
The Applicant states he wishes to reconnect with his children who, from the statements provided, have a strong bond of affection for the Applicant. His daughter SMT has expressed the desire to reside with him in preference to her mother. She states that since her father had been sentenced, she has felt lost without him.
The Tribunal must consider the interests of the immediate family members in Australia (paragraph 8.3(1)) and afford considerable weight to the fact that the Applicant has been ordinary resident Australia during and since his formative years, regardless of when the offending commenced and the level of that offending: see paragraph 8.3(4)(a). In this instance, the Tribunal considers that the requirements of paragraphs 8.3 and 8.3(4) are pivotal. The Applicant’s family unit is close-knit, as evidenced by the support provided by the Applicant’s brothers, his children and other family members. The Applicant’s removal from Australia would be detrimental to those family members. Further, the Tribunal concludes that, taking into account that the Applicant has resided in Australia since he was five years of age, was educated in Australia, has never returned to Fiji, has worked in employment in Australia, and has provided some positive contribution to his community in Australia, it would be contrary to the requirements of paragraphs 8.3(4)(a)(i) and (ii) of the Direction not to revoke the decision under review, irrespective of the Applicant’s criminal offending. But for paragraph 8.3 of the Direction, the Tribunal would have come to a different conclusion.
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that primary considerations 1, 2 and 5 weigh against revocation, and primary considerations 3 and 4 weigh in favour of revocation.
Of the other considerations, two are neutral, and two weigh against revocation of the decision under review.
For these reasons, the Tribunal is satisfied that there is another reason, namely the application of paragraph 8.3 of the Direction, why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
The Tribunal sets aside the decision under review made by the delegate, dated 21 February 2023, not to revoke the mandatory visa cancellation decision, and in substitution, decides that the cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa is revoked.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President
....................................[SGD]....................................
Associate
Dated: 16 May 2023
Date(s) of hearing: 27 and 28 April 2023; 2 May 2023 Counsel for the Applicant: Mr D Godwin Solicitors for the Applicant: Ms A Soltan, T & T Lawyers Solicitors for the Respondent: Ms M Donald, Sparke Helmore
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