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

Tohi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 495 (13 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8489
Re:Stanley Tohi
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:13 March 2020
Place:Sydney

The decision under review, being the decision of a delegate of the Respondent on 20 December 2019 not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is affirmed.
...............................[sgd].....................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – Mandatory cancellation of Subclass 444 Special Category (Temporary) visa – failure to pass character test due to substantial criminal record – whether discretion to revoke mandatory cancellation of visa should be exercised – whether another reason why original decision should be revoked – Ministerial Direction No. 79 applied – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection (Migration) [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Migration Act 1958 – Direction No. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Mr S Evans, Member
13 March 2020
INTRODUCTION

Mr Stanley Tohi (“the Applicant”) is a citizen of New Zealand who first arrived in Australia in 2010 on a Subclass 444 Special Category (Temporary) visa (“the visa”). On 17 August 2018 the Applicant’s visa was cancelled by a delegate of the Minister (“the Minister” or “the Respondent”) as he was sentenced to an aggregate term of imprisonment of three years on 12 December 2017.
The Applicant made representations seeking revocation of the mandatory cancellation decision on 22 August 2018. A delegate of the Minister decided not to revoke the cancellation decision on 20 December 2019.
The Applicant has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the decision not to revoke the cancellation of his visa.
The matter was heard on 24 and 25 February 2020 at the Sydney Administrative Appeals Tribunal. The Applicant appeared in person and was self-represented. Though he has a working command of English, he was assisted by an interpreter. The Tribunal also had before it written evidence and submissions. The totality of the evidence has been carefully considered.
THE LAW
Section 501(3A)(a)(i) of the Migration Act 1958 (Cth) (“the Act”) states that the Minister must cancel a visa that has been granted to a person if they are satisfied that the person does not pass the character test due to them having a substantial criminal record in accordance with sections 501(6)(a) and 501(7)(a),(b) or (c); and that they are serving a full-time sentence of imprisonment for an offence.
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this 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.
When considering whether or not to revoke a mandatory cancellation decision under section 501CA(4), decision makers are required to comply with Part C of Ministerial Direction No. 79 (“the Direction”). Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The “primary considerations” are set out at clause 13 as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The “other considerations” which must be taken into account where relevant are outlined at clause 14 of the Direction. These are:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
ISSUES BEFORE THE TRIBUNAL
There is no question that the Applicant made the representations required by section 501CA(4)(a). Consequently, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
There are therefore two issues presently before the Tribunal:
(a) whether the Applicant passes the character test; and
(b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa should be revoked. I will address each of these grounds in turn.
Does the Applicant Pass the Character Test?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 12 December 2017 the Applicant was convicted of aggravated dangerous driving occasioning grievous bodily harm, use of an uninsured motor vehicle, use of an unregistered motor vehicle, and driving a vehicle without a licence. He was sentenced in the Parramatta District Court to an aggregate term of three years imprisonment with a non-parole period of 18 months. Consequently, I am satisfied that the Applicant does not pass the character test.
The Applicant cannot rely on section 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.
The issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79, there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.
BACKGROUND AND EVIDENCE
Mr Tohi presents as a quiet man and a hard worker. Until the offending he had never been in trouble with the law. He takes pride in the fact that he has always supported himself, most recently working as a labourer at a concrete engineering firm for nine years. He said he loved working and got along well with his colleagues and supervisors.
Mr Tohi was born in Tonga and was living in New Zealand from when he has 25 years old. He worked in a brewery that he called a “beer factory”. He also worked other jobs including as a butcher and making brushes. He was always able to find work in New Zealand.
He followed his mother, father and four of his five siblings to Australia in 2010. He says he was motivated to come to Australia in order to see his mother and to work.
In February 2017 Mr Tohi received a phone call from his daughter in New Zealand who told him that she had been diagnosed with cancer. He found out in November or December that year that she had passed away and been cremated.
Mr Tohi has been in a relationship with a Tongan national, Ms Sau, since early in 2014. Together they have a son, JT, who was born in 2015. When JT was born, Mr Tohi and Ms Sau moved in together.
The Tribunal has before it written submissions from Ms Sau and Ms Lamb. Ms Sau states that she is Mr Tohi’s partner and that they have a child together and the child misses Mr Tohi. Ms Lamb is Mr Tohi’s mother and she notes that she and Mr Tohi’s siblings reside in Australia and that he is the primary carer of his son.
The Applicant’s offending
On 25 March 2017 Mr Tohi and Ms Sau had an argument about money. The couple regularly argued about money, particularly when Ms Sau used money Mr Tohi provided her to gamble. On this occasion the argument was about Ms Sau wanting to send money to her brother. The argument was heated and Ms Sau threatened to terminate the relationship and deny Mr Tohi access to their son. Mr Tohi decided to go and see his friends for support. He went to his brother’s house and took his brother’s motor vehicle. The car’s registration had expired the previous day and Mr Tohi had never held a drivers licence.
When he was at his friend’s house they encouraged him to drink some wine and told him that it would make him feel better. At that point Mr Tohi had not had a drink for over 20 years. He estimates that he drank two casks of wine that day but he cannot be sure.
After consuming alcohol his friends asked Mr Tohi to move his brother’s vehicle from the street into a residential parking complex. Mr Tohi had been drinking since 11:00am and it was now after 7:30pm. He was in an alcoholic “blackout” at the time and did not think about how affected he was by alcohol and decided to move the car.
Whilst moving the vehicle Mr Tohi mounted the curb and struck a pedestrian who was walking on the footpath. The victim was pinned between the vehicle Mr Tohi was driving and a brick pillar fence. She was pregnant at the time and had been walking with her partner and two children, one of whom was in a pram. The vehicle recoiled and Mr Tohi drove forward again striking the victim a second time. She sustained serious injuries, primarily to one leg which was treated the next day at hospital. A tibial nail was inserted into her left tibial shaft and is intended to remain there for the rest of her life. Her unborn child was not harmed.
CONSIDERATION
PRIMARY CONSIDERATIONS:
Primary Consideration A – Protection of the Australian community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
If the Applicant were to reoffend it is clear that there is a significant risk of physical harm to members of the Australian community.
This is Mr Tohi’s only offence. In sentencing the judge observed that the maximum penalty for the principal offence of aggravated dangerous driving occasioning grievous bodily harm was 11 years. His Honour further noted that Mr Tohi’s offence was just below the mid-range of seriousness but not towards the bottom of the range. The judge said that the conduct of Mr Tohi in moving that motor vehicle in circumstances of heavy intoxication involves a “high degree of moral culpability, and a complete abandonment of moral responsibility”.
The seriousness of the conduct is reflected in the sentence he received, as a first-time offender, for his crime – three years imprisonment with an 18 month non-parole period. Whilst his crime was not one of violence or intentionally directed toward a particular individual, the consequence of his actions was that a pregnant woman was seriously injured.
I find that the nature and seriousness of the Applicant’s offending weighs strongly in favour of not revoking the visa cancellation.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In terms of his likelihood of reoffending, Mr Tohi accepts responsibility for his offence and says that the experience including his time in prison has taught him that he should not have driven whilst drunk. He says that his young son is an important factor in ensuring he does not reoffend and that he has no intention of drinking alcohol again. He contends that his likelihood of reoffending is low as he feels tremendous remorse and grief for what he has done and does not want to go to jail again. He also states that his daughter has now passed away and the stress of her illness was a significant contributor to his offending. He says that he is prepared to attend or participate in any rehabilitative course that is available to him whilst in detention.
In sentencing his Honour summarises the offending in the following terms:
He [the Applicant] left school at year 7 and worked hard ever since. Between the ages of 25 and 40 he worked in a brewery; and it was whilst working in that situation that he began to have his problems with the excessive consumption of alcohol. Indeed, it was his problems with alcohol that led him to give up that work. At the age of 40, he commenced to work as a butcher, and since age 54 and continuing to today, he has been working as a concreting labourer. He has had a very consistent employment history.
From the age of 40, when he ceased working at the brewery, he has, until the date of this incident, totally abstained from alcohol.
He has no criminal history of any kind whatsoever, and he is entitled to the leniency which attaches to first offenders in appropriate circumstances. There are no mental health issues. There are no physical health issues. He has some problems with gambling but that is not relevant for present purposes, except to say it seems as if his gambling has something to do with the argument with his partner on the day that he left and went to the friend’s house and drank.
The plea of guilty was entered at the earliest opportunity and he will receive a 25% discount for it.
…
I accept that the offender is remorseful. By reference to his remorse, by reference to his age and lack of previous criminal history, and by reference to the unusual circumstances in which he did consume alcohol, in my view his prospects of rehabilitation are reasonable to good.
…
A reason I held that specific deterrence is of relevance in this case is precisely because of this man’s good history. There is no real explanation for him breaking the law as seriously as he did on this day. He broke the law when he got into that motor vehicle and drove it to his friend’s place (not having a licence) and then he compounded that by getting into that vehicle again, having consumed so much alcohol that he was unable to be interviewed by police, and was totally unable to control the motor vehicle…
In circumstances where there is “no real explanation” for Mr Tohi’s behaviour that day, the Tribunal must consider with particular care the factors which may be indicative of the risk of reoffending.
Whilst working at the brewery in New Zealand Mr Tohi drank daily. He would then continue to binge drink on weekends after he left the brewery. He occasionally smoked cannabis as a social activity. Twenty years before the offending he decided to stop drinking when he began to need a drink to function and because his daughter was at university.
In his evidence, Mr Tohi told the Tribunal that he stopped drinking in New Zealand immediately and with no support but that he did attend Alcoholics Anonymous (“AA”) meetings for two months. When he ceased drinking he reported that his health improved and he felt better. Mr Tohi maintained complete abstinence from alcohol from the day he stopped until the day of his offending.
Mr Tohi conceded that he does not remember anything about the offence because of the alcoholic blackout. He says he only remembers when the police arrived at the accident scene and he realised straightaway what he had done.
Mr Tohi was arrested and taken into custody on 26 March 2017 and released on 30 March 2017 on bail. He was admitted into prison on 12 December 2017. He claims to have attended AA meetings weekly between being released on bail and going to prison. He initially claimed that he attended AA for 11 months but clearly this exceeds the period of time he was on bail. The Tribunal accepts that Mr Tohi attended meetings during this period, noting it was closer to eight months than 11, and that he attended once a week due to work commitments.
Mr Tohi told the Tribunal that he learned about his anger in AA. Asked for more information about his anger issues Mr Tohi said that he held his anger “inside my heart and it just came out all together when this thing happened” with his partner. He says he now knows that it would be better to talk to other people rather than holding things inside himself.
He said at the AA meetings he would talk to other people about giving up alcohol and listen to others talk about how it feels to live without alcohol. When he went to jail he stopped attending AA and he used to perform cleaning and other duties instead.
In March 2018 whilst in prison Mr Tohi completed an “offence mapping” exercise. Mr Tohi was encouraged to list the events leading up to his offending including his thoughts and feelings at the time. He writes that he was working full-time and in a relationship. There were a number of issues between him and Ms Sau. Whilst small they were “building up”. These issues continued between them in the week and the day before and several hours before his offending. He writes he had an argument with his girlfriend about her sending money to her brother. He said he was feeling unhappy, that he had had enough and needed to get away.
Mr Tohi contends that these pressures were exacerbated by the news of his daughter’s illness in New Zealand. Mr Tohi was asked to provide more information regarding his daughter’s health and subsequent death and how it impacted him and may have contributed to his offending. He said that it contributed to his depression.
The Tribunal notes that there is no reference to his daughter’s health in the judge’s sentencing remarks. Mr Tohi concedes that he did not really think about it at the time. Mr Tohi proved to be a poor historian in some specific aspects of his own story and he was clearly unaccustomed to volunteering information about himself. Recognising this, given the timing of his daughter’s diagnosis, the Tribunal accepts that his daughter’s ill health contributed to his state of mind prior to the offending.
Mr Tohi’s record from his time in prison and detention indicates that he has been a well-behaved inmate who was compliant and respectful. A Review of Classification dated 10 April 2018 notes that Mr Tohi “would benefit from participating in the EQUIPS Foundation, Aggression and Addiction programs” to “prevent relapse-alcohol, related to offence”. Whilst Mr Tohi is noted by Corrective Services NSW reports to have been a well behaved, compliant and hard-working inmate, he did not complete the EQUIPS program in prison.
At the hearing Mr Tohi was asked specifically why he believes he will not offend again and he said that his son gives him something important to consider. He says he has learnt a lot in jail about the mistakes he has made which he notes was something he has never done before. He does not want to waste more time in jail he wants to do something better with his time. He is able to return to his former employer and he said that having his job available to him would help him stay on the right path. Mr Tohi intends to perform charity work if released back into the community. Though not specific about what that would be, he indicated it may include the distribution of food.

He submits that he has changed his life and he will look into more courses for alcohol and anger management. He says he enjoys the physical exercise elements of his labouring work and that he plans to continue working for 10 years if he can, even though he is currently 64 years old. The Tribunal accepts this.
There is no evidence of ongoing or professional rehabilitative efforts by Mr Tohi before the Tribunal. Mr Tohi indicated that if released back into the community that he would participate in any programs he would be required to, but there is no indication that Mr Tohi would take responsibility for undertaking these programs unless directed to do so.
Conclusion as to the protection of the Australian community
It is of concern to the Tribunal that in circumstances where there was “no real explanation” for Mr Tohi’s offending there is no evidence of ongoing rehabilitation. Nor is there any indication that Mr Tohi has sought counselling or any other medical intervention to understand his offending and provide the tools and coping mechanisms which might prevent it from happening again.
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Given the serious nature of the harm that flows from offences of the nature committed by the Applicant, I consider that a moderate risk of further harm of a similar nature is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.
Primary Consideration B – Best interests of minor children
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Tohi has been in a relationship consistently with Ms Sau since early 2014. When JT was born in July 2015 the couple moved in together. Mr Tohi, Ms Sau and JT continued living together until Mr Tohi was imprisoned.
Mr Tohi has been less than upfront about his relationship with Ms Sau and there are documents before the Tribunal where he has stated that the couple were no longer in a relationship. An Offender Intake Data Form dated March 2018 records that Ms Sau is Mr Tohi’s “ex-partner” and that she lives in Queensland. It even notes the reason for their separating was that they had issues which led to them breaking up but that they still have a civil relationship and some contact.
At the hearing Mr Tohi confirmed that he and Ms Sau never stopped having a relationship, she lives in Sydney and that they have regular contact over the phone. This is consistent with Ms Sau’s statement and is accepted as fact by the Tribunal.
Relevantly, Ms Sau, like Mr Tohi, was born in Tonga. Ms Sau is in Australia without a valid visa. It was put to Mr Tohi that Ms Sau’s unlawful migration status was the reason he claimed to be separated from Ms Sau. Mr Tohi denied this, stating he was unaware of Ms Sau’s visa status. He conceded, however, that Ms Sau was seeking to use their relationship as a basis from which to regularise her own status by gaining a permanent visa. He contends that he only became aware of this fact after they had commenced their relationship and that he did not know she was currently without a valid visa.
As with the status of his relationship, Mr Tohi was opaque about the care arrangements for JT. He initially claimed to be the primary carer for JT, but following questioning conceded that he was referring to “the financial side”. He then said that while he was in jail and detention care for JT was assumed by Ms Sau (with support from Mr Tohi’s mother). In a letter to support the revocation of the cancellation decision, he writes “I have a four year old son and he is currently living with my mother who is eighty two years old”. Following prompting Mr Tohi provided more detail around JT’s care and stated that his brothers were jointly sharing responsibility for his care with Mr Tohi’s mother.
Mr Tohi later conceded that Ms Sau is in fact the primary carer for JT and that most of the time JT is with Ms Sau. It is a role she performs with the financial support and assistance of Mr Tohi’s family. The Tribunal accepts this as fact.
Mr Tohi states that he has a “very close” relationship with his son and that should his visa be revoked it “would be very difficult” for his son. His son would, he contends, “grow up without a father and would have no family stability in his life”.
Whilst I do not doubt Mr Tohi’s affection and parental care for his son, I note that when he was incarcerated his son was two and a half years old. He has not lived with his son since December 2017, though JT accompanies Mr Tohi’s brothers when they visit Mr Tohi in detention. JT is now approaching 5 years of age. In these circumstances and in the absence of any other evidence, I am not convinced that Mr Tohi and his son have a close relationship at this time.
Mr Tohi said that if released back into the community his intention is to live with JT and Ms Sau as a family. It appeared to the Tribunal that Mr Tohi had not considered the practicalities of such an arrangement and the likelihood that it was achievable given Ms Sau’s uncertain immigration status. When questioned about this Mr Tohi said that if Ms Sau were to leave Australia, JT would stay with him and they would live here in Australia. He said he would go and visit Ms Sau in Tonga but that he would not live there. He said he has to work first before considering going to Tonga.
Based on information provided by the Respondent it is the Tribunal’s understanding that JT is entitled to New Zealand citizenship as well as Tongan citizenship through his parents. At the time of his birth JT would have been entitled to the same visa as Mr Tohi but it appears that no action was taken to regularise his status here in Australia. To stay in Australia JT’s parents will be required to regularise his immigration status.
I accept that Mr Tohi has a caring relationship with his son and that it is his intention to care and provide for him. JT is also the recipient of the care and support he receives from Mr Tohi’s extended family, particularly Mr Tohi’s brothers and mother who together provide both financial support and care. For these reasons, Primary Consideration B weighs in Mr Tohi’s favour. However, based on the information before the Tribunal, it would appear that at present the only opportunity for Mr Tohi to live as per his stated intention, in a stable family unit with his son and Ms Sau, would be in a third country. As such, this consideration is substantially mitigated in its weight.
Primary Consideration C – Expectations of the Australian Community
The relevant paragraphs in the Direction
In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction 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. I must also have regard to (1) the Government’s views in this respect, and (2) any overarching principles and guidance provided by the Direction.[1] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not hold a visa.
[1] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
The evolution of the Australian community’s “expectations”
Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
In 2003, Deputy President Block of this Tribunal said that one must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501”.[2]
[2] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[3] The learned Deputy President thought this paragraph leads a decision-maker to:
…conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.[4]
[3] ETWK and Minister for Immigration and Border Protection (Migration) [2017] AATA 228, [102]-[103]. Note, the terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[4] Ibid at paragraph [102].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[5]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.[6]
[5] [2017] FCA 1466, [76]-[77] (“YNQY”).
[6] Ibid at paragraph [76].
The learned Mortimer J also thought the last two sentences of paragraph 13.3 of the Direction:
… [are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[7]
…
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…[8]
[7] Ibid at paragraph [76].
[8] Ibid at paragraph [77].
In Afu v Minister for Home Affairs,[9] Bromwich J said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.[10]
[9] [2018] FCA 1311 (“Afu”).
[10] Ibid at paragraph [85].
In FYBR v Minister for Home Affairs,[11] Perry J observed that:
It follows, in line with the authorities, that cl 11.3 of Direction 65[12] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the ‘norm’ stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[13]
[11] [2019] FCA 500 (“FYBR”).
[12] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[13] FYBR, [42].
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community;[14]
(b)the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[15]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” to those statements, if made;[16]
(d)in assessing the weight attributable to Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[17]
[14] Afu, [85].
[15] FYBR, [42].
[16] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[17] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
The Australian community expects non-citizens to obey Australian laws while in Australia. As noted, the Applicant arrived in Australia in 2010.
The Applicant arrived in Australia as an adult. He has worked for the entire time that he has been here. Up until the offending he was law abiding. I note however the words of the sentencing judge who said the Applicant’s offending involved a “complete abandonment of moral responsibility”. The Tribunal agrees.
In assessing all the relevant evidence against the requirements of the Direction, I find that the expectations of the Australian community weigh in favour of non-revocation of the cancellation decision.
OTHER CONSIDERATIONS:
In deciding whether to revoke the cancellation of the Applicant’s visa, I must take into account the other considerations listed in Direction No. 79 where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Other consideration A: International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is neutral.
Other consideration B: Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia.
Mr Tohi has been in Australia for nine and a half years and the Tribunal notes that this is a relatively short period of time particularly where he has been in prison, then detention, since 20 December 2017. However Mr Tohi does have family here in Australia, including his elderly mother and five siblings (two of whom are Australian citizens). Some of his family have visited him in detention.
He said his mother came here for work and that she brought his brothers and his sister here to Australia with her before him. He said he would support her upon release back into the community by taking her to church. However, he also says he has not spoken to her recently. His mother does not appear to rely on him to provide her any care and does not indicate that she is dependent on him in her letter of support. Mr Tohi concedes that his sister lives with his mother and that his mother is supported by his other siblings who assist her. Apart from the emotional impact separation would have there is no further consideration in respect of his mother.
Mr Tohi also provided evidence of the positive contribution he has made to the community, in particular the Tongan Australian community. Mr Tohi has provided a character reference from the Tongan Fofo’anga community group president who claims to have known Mr Tohi for 11 years. He says Mr Tohi plays a pivotal role in the group’s youth support programs which counsel young Pacific Islander people. This has only been for a short period of time.
Particularly in consideration of the support Mr Tohi receives from his family, this factor weighs in favour of revocation.
Other consideration C: Impact on Australian business interests
This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project, or the delivery of a major service in Australia. There is no evidence from either party that this was the case in the Applicant’s particular circumstances.
Other consideration D: Impact on victims

The Direction provides that decision-makers should take into account the impact on victims where information is available. There is no evidence before me which directly relates to the views or impact of revocation of the mandatory visa cancellation on the victim. Consequently this consideration weighs neutrally.
Other consideration E: Extent of impediments if removed
This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is removed to New Zealand.
Mr Tohi resided in New Zealand for a significant period of time and during that period he was always able to find employment. It is clear he has established social connections. He also has an uncle that lives in New Zealand as well as a brother. He has made numerous return trips to New Zealand and he has indicated he will get back into contact with his social connections in New Zealand if returned. Any impediments or difficulties he may face could be overcome. While of course there would be emotional hardship there are other ways of maintaining contact (e.g. by telephone).
I do consider that Mr Tohi would adjust and re-establish himself in New Zealand and consequently I give this factor minimal weight in favour of revocation.
CONCLUSION
Mr Tohi said that all he is asking for is an opportunity to live in this country. He said he is not going to reoffend and that he has a positive contribution to make. He again apologised for what he had done noting that he can’t do much about it.
As mentioned earlier, section 501CA(4)(b) of the Act stipulates two alternative conditions required to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (i) the Applicant must be found to pass the character test, or (ii) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Mr Tohi’s serious offending precludes him from passing the “character test” in section 501(6) of the Act.
I have examined the specific circumstances relating to Mr Tohi as part of my consideration of whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and expectations of the Australian community are in favor of not revoking the cancellation decision. Whilst the Applicant’s offending was a single, one off incident, there is a dearth of evidence to support the contention that something similar will not happen again. The consequences of his actions were extremely serious and demonstrated a recklessness and volatility which began the moment Mr Tohi, unlicensed and sober, chose to use his brother’s vehicle.
Having regard to the considerations in the Direction, the Tribunal is not persuaded that the Applicant’s rehabilitative efforts are satisfactory relative to the risk of future harm to the Australian community should he resume his reoffending.
Whilst I accept that Mr Tohi has a genuine intention not to repeat his actions that day, the nature of the offending indicated an unpredictability in his behaviour. The Tribunal considers that this has not been addressed through meaningful measures such that the Tribunal can be reassured there was a low probability of being repeated.
I accept that Mr Tohi expects to provide for his son and that he has a relationship with him. However for most of his son’s life the parental role has been fulfilled by others. I also consider that Mr Tohi’s expectations for the care arrangements of his son are unrealistic or not sustainable given the current migration status of his son and the child’s mother. Based on the information available, it would appear Ms Sau’s migration status in Australia will be difficult to regularise. For this reason the primary consideration concerned with interests of minor children carries some, though not significant weight in favour of revocation.
With respect to the other considerations I note that Mr Tohi at 64 years of age is approaching retirement age and may find readjusting to life in New Zealand challenging. I accept that most of his extended family and support network is in Australia. These two considerations, being the strength, nature and duration of his ties to Australia and extent of impediments if removed, weigh in favour of revocation.
The Australian community will face an unacceptable risk of further harm if Mr Tohi remains in Australia. Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent on 20 December 2019 not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..........................[sgd]..........................................
Associate
Dated: 13 March 2020

Dates of hearing: 24 & 25 February 2020

Applicant: In person

Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers

[2020] AATA 495

13 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Dates of hearing:	24 & 25 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers