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

[2021] AATA 3283

Telea and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3283 (23 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3660

Re:Onosi Telea

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:23 August 2021

Date of written reasons:        10 September 2021

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made on 2 June 2021 is set aside, and in substitution, there is another reason why the mandatory cancellation of the Applicant’s Partner (Class BC) (Subclass 100) visa should be revoked.

.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class BC, Subclass 100 Partner visa – citizen of Samoa – failure to pass character test – whether there is another reason to revoke the visa cancellation – Direction No. 90 – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children in Australia – expectations of the Australian community – extend of impediments if removed – impact on victims – links to the Australian community – decision under review set aside

LEGISLATION

Crimes (Sentencing Procedure Act) 1999 (NSW), s 10

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

FYBR and Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

WRITTEN REASONS FOR DECISION

Mrs J C Kelly, Senior Member

10 September 2021

The reviewable decision

1. On 3 June 2021, the applicant, Mr Telea, applied to the Tribunal for review of a decision made by a delegate of the Respondent (the Minister) on 2 June 2021 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of his Partner (Class BC) (Subclass 100) visa which was granted on 13 July 2012 (the visa) (the reviewable decision).

   Background

2. The applicant is a citizen of Samoa.  He was born in 1986 and is 35 years old.  He arrived in Australia for the first time on 23 December 2007 and has resided here since August 2009.  He states that he married his wife on 16 February 2008.

3. He has an extensive history of convictions for offences of family violence against his wife beginning on 16 August 2010 and culminating in convictions on 7 July 2020 for:

   (a)Contravene prohibition/restriction in AVO (Domestic);

   (b)Stalk/intimidate intend fear physical etc harm (domestic)-T2; and

   (c)two counts of Possess prohibited drug.

4. Consequently, the applicant was sentenced to an aggregate sentence of one year and six months’ imprisonment which as a matter of law means that he failed the character test: s 501(6)(a) and 501(7)(c) of the Act.  His non-parole period was 10 months.  He was released on 16 March 2021 and taken to immigration detention.

5. On 16 July 2020, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act.  On 11 August 2020 he made representations seeking revocation of the visa cancellation decision, which was unsuccessful.  Consequently, he  applied to this Tribunal for a review of the decision not to revoke the mandatory cancellation of his visa.

   The issues

6. Section 501CA(4) of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under s 501(3A) of the Act. They are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:

   (i)the Applicant made representations in accordance with the invitation issued under s 501CA(3);[1] and

   (ii)the Applicant passes the character test (as defined in s 501(6));[2] or, if the Applicant does not pass the character test, that there is another reason why the cancellation decision should be revoked.[3]

   [1] The Act s 501CA(4)(a).

   [2] The Act s 501CA(4)(b)(i).

   [3] The Act s 501CA(4)(b)(ii).

7. It is not in dispute that the applicant does not pass the character test as defined in s 501(6) of the Act. He has made representations as required by s 501CA(4)(a) of the Act.

8. Therefore, the issue to be decided is whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act having regard to the considerations prescribed in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) given by the Minister pursuant to s 499(1) of the Act.  Direction 90 came into effect on 15 April 2021.

   Direction 90

9. The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task.  Part 2 of Direction 90 is about exercising the discretion.  It sets out primary and other considerations and the factors to be considered in each case. 

10. The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:

    (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, with respect to 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 the 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conned 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 measureable risk of causing physical harm to the Australian community.

11. Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:

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

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

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

12. Each relevant consideration will be addressed in turn.

    Primary considerations

    Protection of the Australian community

13. The first primary consideration is protection of the Australian community from criminal or other serious conduct.  Paragraph 8.1(1) of Direction 90 states:

    (1)   When considering protection of the Australian community, decision-makers should 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. In this respect, decision-makers should 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.

14. Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:

    (a)The nature and seriousness of the Applicant’s conduct; and

    (b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct to date

15. The applicant’s first offence in Australia came before a court on 31 August 2010, about a year after he began residing in Australia.  The court found him guilty of common assault (DV)-T2 but did not proceed to conviction and made an order discharging him on condition that he enter into a 12 month good behaviour bond.[4]  An Apprehended Domestic Violence Order (ADVO) was issued.

    [4] Crimes (Sentencing Procedure Act) 1999 (Cth), subsection 10(1)(b).

16. The New South Wales Police Facts sheet stated that the offence was committed on the night/morning of 16 and 17 August 2010.  The applicant returned to his residence at 11:30 pm, walked into the bedroom where his wife was with their three-month old son, and verbally abused her about a financial matter.  His brother removed him from the room.  He returned at 1 am, yelled at his wife and slapped her twice on the face.  His brother intervened again and pulled him off his wife. 

17. On 4 February 2011 he was convicted of common assault (DV)–T2 (on callup of the previous offence), common assault (DV) – T2, and contravene prohibition/restriction in AVO (Domestic).  He was issued a good behaviour bond.  The second offence was committed on the afternoon of 29 October 2010.  The NSW COPS record of the offence described a physical and verbal dispute that began in a bedroom where the applicant was lying down until approached by his wife and ended in the backyard.  It stated that the applicant wrapped his arm around his wife’s neck, pulled her down onto the bed, got onto her back, squeezing her neck briefly, she fought him off, he grabbed her jacket and caused pain with his knuckles, he packed his bag, pushed her back on the bed and choked her briefly.  In the backyard, the applicant’s wife started removing his clothes from the clothesline before he joined in, and later he punched her in the right eye causing immediate pain when she threw the clothes at him.

18. On 26 September 2011 the applicant was convicted of licence expired less than 2 years before-1^st offence and placed on a 12 month good behaviour bond.

19. On 20 January 2014 he was convicted of Drive with middle range PCA–1^st offence, fined $400, issued a 12-month good behaviour bond and disqualified from driving for six months.

20. On 14 April 2015 the applicant was convicted of stalk/intimidate intend fear physical etc harm (domestic)-T2, common assault (DV)-T2, and two counts of destroy or damage property (DV).  He was sentenced to an 18-month good behaviour bond for one of the destroy or damage property offences and the common assault and stalk/intimidate offences, and a fine of $400 for the other destroy or damage property offence.  These offences were committed on 3 April 2015.

21. The NSW Police Facts Sheet states that the applicant’s wife asked the applicant to assist her to prepare dinner.  He picked up a wooden chair and threatened to hit his wife.  After further threatening behaviour, the applicant used a screwdriver to burst a tyre on his wife’s car.  He then threw a bottle of brake fluid towards her and drove off in his vehicle.  The applicant returned and began to bang on the doors and windows of the house, eventually smashing one window.  The children were standing with their mother inside the house watching the applicant bang on the front window. 

22. On 4 October 2017 the applicant was convicted of common assault (DV) T2 and destroy or damage property <=$2000 (DV)-T2.  He was given an 18-month good behaviour bond.  The applicant committed the offence around 7 pm on 24 September 2017.  The NSW Police Facts Sheet stated that the applicant wanted his wife to prepare dinner for him and a friend.  They argued.  He punched her in the head three to four times despite her continued attempts to defend herself.  She attempted to call the police.  The applicant grabbed her phone and crushed it. 

23. On 7 April 2020 he was convicted of destroy or damage property (DV) and stalk/intimidate intend fear physical etc harm (domestic)-T2.  He was fined $200 for the first offence and sentenced to a 15-month term of imprisonment to be served by way of intensive correction order for the second offence. 

24. The NSW Police Facts Sheet described the incident.  The applicant committed the offences on 18 December 2019 after his wife spoke with him about the tidiness of the house.  He picked up a plastic fan and hit two sides of the same wall with it, causing holes to emerge.  The Facts Sheet stated that that was done in front of their then nine-year old son.  His wife gave evidence that she and their son were in an adjoining room.  The applicant left the house and returned approximately two hours later.  He tapped on a window with a hammer and told his wife he would break into the house if she did not let him in.  She feared for her safety and yelled out to a passer-by on the footpath to call the police.

25. On 7 July 2020 the applicant was convicted of two counts of possess prohibited drug, contravene prohibition/restriction in AVO (Domestic) and stalk/intimidate intend fear physical etc harm (domestic)-T2.  He was sentenced to 18 months (aggregate) imprisonment commencing 17 May 2020, concluding 16 November 2021, with a non-parole period of 10 months commencing 17 May 2020.  These offences were committed on 15 May 2020, about five weeks after the applicant had been sentenced on 7 April 2020.

26. The transcript of the sentencing on 7 July 2020 and the  NSW Police Facts sheet show that the applicant had an argument with his wife in their home while he was holding a knife.  The sentencing magistrate said that the applicant threw something at his wife and then proceeded to go on “a bit of a rampage with the knife in your hand again”.  The magistrate accepted that the applicant “didn’t threaten [his wife] with the knife” but observed that “it would have been quite scary for her and quite intimidating”.  His wife then ran out of the house and called for police.  The applicant followed with the knife.  Their daughter, aged eight, attempted to intervene and the applicant grabbed her and dragged her back into the house.  The sentencing magistrate noted that “it would have been particularly scary for both [his wife], your daughter as well as anybody else who was there at the time”.

27. The applicant conceded that he has a substantial criminal record and commenced offending shortly after arriving in Australia.  He pointed to all his offences between 2010 and 2017 being dealt with by fines and good behaviour bonds, which are at the lesser end of the sentencing options, and the lack of offending between 2017 to 2020.  He pleaded guilty in the first instance to all offences.  He was compliant with Police.[5]  He has served only one period of incarceration.  There is no evidence that he has demonstrated violence against any person other than his wife, including while he was incarcerated and in immigration detention.

    [5] NSW Police Fact Sheet, Respondent’s Tender Bundle (RTB) p 71.

28. The applicant’s criminal history reflects a pattern of repeated family violence offences committed against his wife from 2010 to 2020, with a trend of increasing seriousness, reflected in the two sentences of imprisonment in 2020, the first being served by intensive correction order which did not dissuade the applicant from reoffending only about five weeks after being sentenced.  This offending is very serious. 

29. The applicant’s offending included driving without a licence in 2011, drive with mid-range Prescribed Content of Alcohol in 2013, and two counts of drug possession in 2020.  When questioned about the drug offences, the applicant claimed that he had found the bag when he went to buy bread and just left it in the car and did not know what ice looked like, it was not found on him and he was not tested.  He did plead guilty. 

30. His prolonged repeated family violence offending shows a sustained disregard for Australian law.  The applicant gave oral evidence explaining that he faced difficulty adjusting to Australian culture and that family violence in Samoa was a village issue and not a police issue.  That may explain the first offence.  It does not explain the offences thereafter.  It does not justify his behaviour.

31. His conduct and oral evidence demonstrated that the sentences that were imposed made no impact on him until he was actually imprisoned, or as his legal representative phrased it, “he had little insight into the strictness of the laws” until he was imprisoned, despite being warned by the courts.  The good behaviour bonds had neither a deterrent nor a rehabilitative effect.  His conduct and oral evidence show that before being imprisoned, he did not consider that the family violence offences were serious and did not consider their impact on his wife or children.

32. The Minister raised an interaction with staff in prison.  I give little weight to the incident.

33. The final matter to consider is that the applicant failed to declare his earlier convictions on four incoming passenger cards between 7 June 2014 to 5 June 2016.  The Minister contended that I should find that he deliberately attempted to conceal his criminal history and demonstrates his disregard for authority and an unwillingness to be honest with the Australian government which is inconsistent with conduct of someone seeking the privilege of entering and remaining in Australia.

34. When he was taken to a copy of one of the cards, the applicant said that he could not remember anything about it and that someone else could have filled it out because there was no signature.  When asked about the signature, which did appear on the card, he denied it was his signature.  I found his evidence to be evasive.  However, given that English is his second language, I give little weight to this matter because he may not have understood what the word conviction means, despite his previous conviction.    

    The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

35. The Government’s view expressed in paragraph 8.1.2(1) of Direction 90 is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct and the harm that would be caused if repeated, is so serious that any risk that it may be repeated may be unacceptable.

36. The applicant conceded that if he committed further offences of family violence, it would cause significant harm to the Australian community, but argued that he has positive rehabilitative prospects, relying on the report of Clinical and Forensic Psychologist Dr Emily Kwok, as well as his own evidence.

37. The applicant’s wife has been the victim of all the family violence offences the applicant has committed.  The most recent offences were within six months of each other and were increasingly serious as reflected in the sentences imposed.  Her physical and psychological health is of concern.  The Australian Institute of Health and Welfare specifies that for women aged 15 and over, mental health conditions made the largest impact of the ‘disease burden’ caused by domestic violence in 2015.  In particular, anxiety disorders were the largest contributor to the burden, followed by suicide and self-inflicted injuries, and depressive disorders.[6]  Any future partner may be a potential victim of the applicant.

    [6] Australian institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story, 2019 – in brief. RTB p TB7.

1. Dr Kwok wrote a report dated 20 July 2021 and gave oral evidence.  She interviewed the applicant on 12 July 2021.  He was asked to complete a psychometric test which could be administered online.  Instructions were sent to the email address he provided, and a reminder email sent on 19 July 2021.  He had not completed the test at the time the report was written.  He “expressed” that he did not wish to speak about his offending history and could only recall details of the offences for which he was sentenced to imprisonment.

2. Dr Kwok wrote:

   The provision of additional material may warrant revision of the opinions expressed herein.

3. Having administered the Ontario Domestic Assault Risk Assessment, Dr Kwok reported that without appropriate intervention, the applicant had a moderate risk of “reoffending and danger/threat/risk to the Australian community, and in particular, to his wife”.   In her opinion, the appropriate interventions to reduce his likelihood of reoffending were to address his impulsivity and anger.  She reported that the applicant presented with lack of insight into his offending behaviours.  He denied that he was violent to his wife.

4. Dr Kwok said that there were protective factors that reduce the applicant’s risk of recidivism.  First, he appears to have a strong system of prosocial support within the local community, including his extended family and involvement in church and sporting activities.  She also observed that returning to work with his brother-in-law at least temporarily, would ease financial stress, which in the past had been the subject of arguments with the applicant’s wife, and would likely reduce the likelihood of similar incidents in the future.

5. Dr Kwok referred to the applicant’s having attended and completed a six-month group-based anger management course but no programs for domestic violence because he was not assigned to any in prison.  She also noted that the sentencing and pre-sentence reports had recommended the applicant for domestic violence programs and there was no record to indicate that he had pursued them. 

6. A Certificate of Completion dated 4 December 2020 shows that the applicant completed 135 hours of five programs, including EQUIPS Domestic and Family Violence.  These courses were completed after he had been notified of the cancellation of the visa and before Dr Kwok interviewed him and prepared her report. In his application for revocation of the visa cancellation he stated that:

   I will be completing anger management and domestic violence programs.  I feel these will help my behaviours.

7. The applicant’s written and oral evidence was to the effect that he should be given a second chance and that he knows the he cannot fight, intimidate, scare or put his hands on his wife because of the programs that he has completed, and now knows what to do in those situations.  He expressed a willingness during his oral evidence to undertake more courses.  There was no detail or plan for doing so.

8. The pre-sentence report for the court appearance on 14 April 2015 included the following.  The applicant had completed an external domestic abuse program while under supervision in 2011.  The applicant’s wife said that they had addressed their issues after that intervention and developed practical strategies to avoid further domestic violence within the home.  The writer stated that the applicant demonstrated a sound level of insight into his own behaviour and the couple said that a minor issue was blown out of proportion and they had miscommunicated.

9. The sentencing assessment report for the 7 April 2020 court attendance included the following.  The applicant appears to have limited support from his own extended family and presented with linguistic barriers as English is not his first language.  He minimised his offences, contested some parts of the Police facts and denied threatening behaviour towards his wife, the victim.  Overall, he appeared to lack insight into his behaviour and apportioned blame on his wife for the escalation of their arguments.  The applicant revealed that he was not happy in his marriage and was remaining for the children’s sake.  He and his wife indicated that his recent job loss and subsequent financial pressures contributed to rising tension between them.  The applicant appeared to lack insight into the effects his behaviour had on his family and said that he believes that his wife will deny access to his children if he leaves.  He had been referred to a service provider to undertake an offence targeted program but had not been contacted.  The applicant had been subject to previous supervision in 2018 while on a good behaviour bond for a similar offence.  He was referred to an external program.  In view of his low risk rating, his supervision was terminated early.  It appeared that he did not pursue the program.  

10. The applicant’s wife said that she does not feel threatened by the applicant and requested that consideration be given to revoking the cancellation of the visa.  However, when I asked her if she really believed that there would be no domestic violence in the future, she said that she did not know.

11. A number of references from relatives and ministers of religion were in evidence.  They did not demonstrate a detailed knowledge of the applicant’s criminal record, and particularly did not demonstrate a knowledge of his repeated the family violence offences.  His brother told the Tribunal that he did not know about the applicant’s family violence offending until he went to prison.  This support of his relatives, religious community and sporting community were available to him throughout the period of his criminal offending.

12. The applicant has not been in the community since May 2020.  His claims of rehabilitation have not been tested.  It was clear from his evidence that he has only understood that his family violence offences were serious when he went to prison.  The sentences imposed before he was imprisoned did not send that message to him.  He repeatedly said that he did not understand how strict Australian laws were until he went to prison.  That leads me to conclude that self-interest is a factor which may reduce the applicant’s risk of reoffending.  He does not want his visa cancelled.  He does not want to return to life in Samoa.  He does not want to be separated from his children who are unlikely to return to Samoa with him.

13. The applicant’s evidence about his insight into his family violence offending was not persuasive.  Despite my finding about self-interest, I still accept Dr Kwok’s opinion that his risk of reoffending is moderate. I note that her interview and report were completed after the applicant had completed the courses he claimed assisted him to understand his offending and to avoid reoffending.

14. Overall, the protection of the Australian community weighs heavily against revocation of the cancellation of the applicant’s visa.

    Family violence

15. The second primary consideration is whether the conduct engaged in constituted family violence.  The applicant’s offending is summarised earlier in this decision.

16. The applicant conceded that he has been convicted of multiple very serious offences relating to family violence, and his victim was his wife. 

17. The applicant claimed that he has not sought to downplay his offending and has taken responsibility, as evidenced by his early guilty pleas, expression of remorse, and understanding of the seriousness and consequences of family violence.  He has made efforts to address factors which contributed to his conduct by participating in courses offered while he has been in gaol and detention.

18. The applicant repeatedly sought to downplay the seriousness of his offending, blaming his wife for starting arguments, while also claiming to have insights into that offending and how to deal with situations which would prevent him reoffending.  For the reasons given in the previous section, I have concerns about the applicant’s insight into his family violence offending, despite having undertaken at least one relevant course.  The lessons he has learned are that he may go to prison if he reoffends, and his visa may be cancelled requiring him to return to Samoa and be away from his wife and children.  His self-interest in not reoffending may reduce his risk of reoffending.

19. I am confident that the applicant does not understand the adverse impacts of his family violence offending on his wife or his two biological children who have been present during some of the offending.

20. I view the applicant’s family violence very seriously and give significant weight to the Government’s serious concerns about conferring the privilege of remaining in Australia on non-citizens such as the applicant who engage in family violence.  This consideration weighs significantly against revocation.   

    Best interests of minor children

21. The third primary consideration is the best interests of minor children. There are three children under the age of 18 whose interests would be affected if the applicant’s visa cancellation was not revoked and he was removed from Australia.  They are all Australian citizens.  The oldest child is his stepson who was born in 2005.  The applicant’s biological son was born in 2010 and his biological daughter in 2011.

22. The evidence of both the applicant and his wife is that the children will not relocate to Samoa if the revocation request is unsuccessful.  The Minister accepted that to the extent that each of the children may wish to maintain their relationship with the applicant, their best interests favour revocation but pointed out that there was nothing to suggest that they would not be able to maintain contact by means such as they have had to use during the current COVID-19 pandemic and the applicant’s period in prison and immigration detention. 

23. The applicant’s stepson is 16 years old.  He will turn 18 in less than two years’ time.  His mother has fulfilled a parental role for all his life.  The applicant has fulfilled a parental role to his stepson for about 13 years.  His stepson is not currently financially dependent on the applicant.  The applicant claims that he calls him once or twice week.  His stepson visited the applicant in gaol with his mother and two siblings.  His stepson was in contact with his biological father early in the relationship of the applicant and his mother, but they lost touch.  I take into account Dr Kwok’s opinion about the importance of the applicant in the life of his stepson as he moves into adulthood, however she does not appear to have been aware that the stepson had lived with his maternal grandmother from about 2019 and about two months before the hearing had been offered a job through his girlfriend’s father and stayed with her family to get picked up for work.  That was the evidence of the applicant’s wife.

24. The applicant’s wife stated in the letter that was provided with the request for revocation that the stepson has said that he really missed the applicant and gave $100 from his pay to be deposited into the applicant’s account to buy something to eat.

25. Revocation of the cancellation decision would be in the stepson’s best interests.  Because of his age and increasing independence, I give less weight to his best interests in having the cancellation decision revoked than I do the best interests of the applicant’s biological children.

26. The applicant has been a parent in the fullest sense to both his biological children and in terms of Direction 90, will for another seven and eight years respectively.  He has a particularly close relationship with his daughter. Their mother fulfils a parental role in their lives.  I do not accept the suggestion in the Minister’s submissions that having a mother fulfilling a parental role in a child’s life somehow reduces or diminishes the need to have a father fulfilling a parental role in a child’s life.

27. The commission of family violence offences in the presence of the applicant’s biological children on at least two occasions is very concerning.  The Minister referred to research that has consistently found that children who are exposed to family violence have higher levels of emotional and behavioural problems than children who have not.[7]  The Australian Institute of Criminology has specified that childhood exposure to domestic violence can result in psychological and behaviour impacts.[8]  There is no objective assessment before the Tribunal of the impact of the family violence on the applicant’s children.  The sentencing magistrate remarked that the applicant’s conduct would have been particularly scary for his daughter.  Any further family violence against the applicant’s wife is likely to have a detrimental impact on the children, particularly if they are present.

    [7] Family Court of Australia, Child Dispute Services Fact Sheet – Exposure to family violence and its effect on children (RTB p 334).

    [8] Australian Institute of Criminology, Trends and issues in crime and criminal Justice – Children’s exposure to domestic violence in Australia (RTB p 317).

28. The applicant’s capacity to earn money to support his two children and his wife would be greater in Australia than in Samoa, although evidence about his employment in Australia was inconsistent.  As Dr Kwok noted, in his Personal Circumstances Form the applicant provided to the Department, there was a gap in his employment history between 2015 and 2017 and the pre-sentence report of 4 October 2017 indicated that he was not working at that time and was awaiting approval by Centrelink.  The sentencing report of 6 April 2020 noted that recent job loss and financial pressures appeared to have contributed to rising tension between the applicant and his wife.  The applicant claimed that he was working all the time until he was arrested and imprisoned.  I do not accept that.  He was unemployed at the time of his final arrest.  His brother gave evidence that he would employ him full-time if he was released into the community.  The applicant’s wife has had to work to support the family in recent times, in addition to receiving Centrelink benefits.  I infer from the evidence, including that of Dr Kwok, that this situation imposes a strain on her which may adversely impact her capacity to fulfil her parental role to the two younger children.

29. The Minister seemed to suggest that because the applicant has been physically absent from the lives of the children while in prison and migration detention, less weight should be given to the impact on them if he was removed from Australia.  I disagree.  That unfortunate circumstance weighs in favour of reuniting them with the applicant to restore their relationship with him to what it was before that time.

30. While the risks of further family violence against their mother and in their presence reduce the weight to be given to the best interests of both the applicant’s biological children in favour of revoking the decision to cancel the applicant’s visa, this consideration weighs very heavily in favour of revocation in respect of both the applicant’s biological children and significantly in favour of revocation in respect of the applicant’s stepson.

    Expectations of the Australian Community

31. The fourth primary consideration is expectations of the Australian Community.  Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.  Direction 90 further states that 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.

32. The Full Court of the Federal Court of Australia considered clause 11.3(3) of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.

33. The question for the decision-maker is the weight to be attached to this consideration.

34. The applicant understood and agreed with paragraph 8.4(1) of Direction 90 that the Australian community expects non-citizens to obey Australian laws while in Australia.  He accepted that he had breached that trust in the past but instructed his legal representative that there is no unacceptable risk that he will do so in the future.

35. The applicant submitted that the Australian community would give him a fair go by way of a second and final chance, taking into account that he:

    ·has three Australian citizen children who are dependent on him and have a strong bond;

    ·has conceded his wrongdoing and is remorseful;

    ·has sought rehabilitation for his aggression in custody;

    ·has made positive contributions to Australia through employment and supporting his family, and

    ·has no immediate family or major ties left in Samoa.

36. For the reasons I have already given:

    ·his stepson is not financially dependent on him but does have a bond with him;

    ·I am not persuaded that the applicant has insight into his offending;

    ·there is a moderate risk that the applicant will reoffend, that is commit further family violence offences, including in front of his two biological children;

    ·he has made a positive contribution to Australia through employment, but not for as long as he has claimed, and has supported his family during that time;

    ·as discussed later, he has some family in Samoa, although his immediate and extended family are mostly in Australia and some are in New Zealand.

37. The Australian legal system has given the applicant a number of chances to change his behaviour which he ignored.  He has been given a “fair go”. 

38. In any event, paragraph 8.4(4) of Direction 90 provides:

    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.

39. The expectations of the Australian community weigh significantly in favour of not revoking the visa cancellation decision.

    Other considerations

    Extent of Impediments if removed

40. The applicant claimed that he would face practical and emotional hardship upon return to Samoa, due to lack of family and social support.

41. I accept that the applicant will be adversely affected emotionally by a lack of family and social support if he returns to Samoa.  He will miss his children particularly.  However, paragraph 9.2 of Direction 90 talks about the impediments of the person establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account the applicant’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available in that country.

42. The applicant’s age and health pose no impediment to his returning to Samoa.  He has spent the majority of his life there.  Samoan is his first language.  He required an interpreter to assist during the Tribunal hearing.  He grew up, was educated, and employed in Samoa until the age of 23.  His education there included acquiring the trade of carpentry.  In Australia he has worked as a forklift driver and tree lopper.  He has increased his skills base which is likely to improve his ability to find employment in Samoa.  He would be entitled to the same benefits as other citizens of Samoa.[9]  The evidence is that he has some relatives in Samoa, although perhaps not close family members.

    [9] RTB, TB11.

1. This consideration weighs slightly in favour of revocation of the visa cancellation decision.

   Impact on victims

2. Paragraph 9.3(1) of Direction 90 requires consideration of the impact of a decision to revoke or not revoke the cancellation of the visa, on members of the Australian community, including victims and the family members of victims of the applicant’s criminal behaviour to the extent information is available and has been provided to the applicant.

3. The applicant’s wife has expressed the wish that the applicant remain in Australia, for the sake of her and the children, and that he deserves a chance to make it up to them.  Her evidence was that she did not feel threatened by the applicant.  When asked whether she really believed that he would not reoffend against her, she was unable to say.  The family violence offences against her have been repeated and demonstrated a trend of increasing seriousness.  The evidence shows that the applicant has a moderate risk of reoffending against her and possibly in the presence of his biological children.

4. To be balanced against those matters are the apparent emotional and financial dependence of the applicant’s wife and two biological children on the applicant.  

5. This consideration weighs against the revocation of the visa cancellation decision.

   Links to the Australia community

   Strength, nature and duration of ties in Australia

6. This consideration requires consideration of the strength, nature and duration of ties and the impact on Australian business interests.  Australian business interests are not relevant in this case.

7. The applicant has strong ties with the Australian community through his wife, three children, other relatives, friends and community members developed over almost 11 years that he was in the community before being imprisoned.  He was involved in church and sporting activities. He continues to be in contact with his family. 

8. However, less weight should be attributed to this consideration because his offending began within a year of his coming to Australia, was repeated and increased in seriousness over time, and has resulted in public expenditure including of policing, court proceedings imprisonment, rehabilitation programs and immigration detention.

9. I accept that his wife and three children have not been financially dependent on the applicant since before he was arrested in May 2020 when he was unemployed.  His stepson is currently employed.  However, his wife and two biological children would be in a stronger financial position if he were employed in Australia and supporting them financially.  His brother gave evidence that he would give him a job in his tree-lopping business if he is released into the community. 

10. I accept that the applicant’s moderate risk of reoffending against his wife, possibly in the presence of his two biological children, reduces the weight to be given to this consideration. 

11. There may be some emotional impact on other relatives, including those of his wife, if the applicant returns to Samoa, but that is not a matter to which I give significant weight.

12. This consideration favours revocation of the visa cancellation decision.

    Conclusion

13. For the reasons set out above, the primary considerations of the protection of the Australian community, family violence committed by the applicant and the expectations of the Australian community weigh heavily against revocation of the visa cancellation decision.  The other consideration, impact on victims, also weighs against making that decision.  However, the primary consideration, the best interests of minor children, particularly of the applicant’s biological children, weighs very heavily in favour of revocation of visa cancellation decision.  The other considerations of extent of impediments if removed and links with the Australian community also favour revocation of the visa cancellation decision.

14. Weighing all the considerations, I find that those favouring revocation of the visa cancellation decision have greater weight than those favouring non-revocation.

    Decision

15. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made on 2 June 2021 is set aside, and in substitution, there is another reason why the mandatory cancellation of the Applicant’s Partner (Class BC) (Subclass 100) visa should be revoked.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 10 September 2021

Date(s) of hearing:	2 and 3 August 2021
Solicitors for the Applicant:	M Mamarot, SouthWest Migration & Legal Services
Solicitors for the Joined Party:	C Burke, Sparke Helmore Lawyers