Tolutau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] ARTA 317
•19 November 2024
Tolutau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 317 (19 November 2024)
Applicant/s: Unisitoni Sesili Tolutau
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/6520
Tribunal:General Member S. Fenwick
Place:Melbourne
Date:19 November 2024
Decision:The Tribunal sets aside the decision dated 27 August 2024 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa and substitutes it with the decision that there is another reason why the mandatory cancellation should be revoked.
..............................[SGD]..................................
General Member S. Fenwick
Catchwords
MIGRATION – mandatory cancellation of visa – national of United States of America – Class BS Subclass 801 Partner visa – failure to pass character test – serious drug offending – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – ties to Australia and best interests of minor children considered – decision set aside and substituted
Cases
Rano v Minister for Homa Affairs, Minister for Cyber Security [2024] FCA 1003Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth)
Statement of Reasons
BACKGROUND
Mr Tolutau applied on 1 September 2024 for review by the Tribunal of a decision made 27 August 2024 not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner visa. The Applicant’s visa had been subject to mandatory cancellation under the Migration Act 1958 (Cth) on character grounds.
The Applicant is a national of the United States of America (the US) and at the time of this decision is 38 years of age. Mr Tolutau is of Tongan ancestry and is married with three children aged six, eight and ten years. He met his wife at a cultural festival in the US when she was on an extended stay in Colorado visiting family. After a long-distance relationship and further time together in the US during layovers as a flight attendant, they married in Colorado in 2012. Mr Tolutau moved to Australia later that year.
The Applicant has a single instance of criminal conduct constituted by his role in the importation of a large quantity of methamphetamine in 2019, which he facilitated in his work as a baggage handler. Mr Tolutau was sentenced in June 2020 to nine years imprisonment with a minimum of six years prior to being eligible for parole. He will become eligible for parole in March 2025.
Mr Tolutau was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (ASFIC) and a hearing bundle (HB) comprising primarily witness statements. The Respondent lodged a Statement of Facts, Issues and Contentions (RSFIC), documents pursuant to s 500(6F) of the Act (G), and supplementary G documents (SG). The Applicant and his wife, Mrs Pauline Tolutau, both gave evidence at the hearing.
LEGISLATION
Mandatory visa cancellation in circumstances of a substantial criminal record arises under s 501(3A) of the Act. This is one of a number of ways in which a person may fail the character test in s 501(6). Substantial criminal record is defined as including the situation where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
A mandatory cancellation decision may be revoked upon application where a person is found to pass the character test, or where there is another reason to revoke the decision (s 501CA(4)). A compulsory source of guidance has been issued in the form of Direction No. 110 (the Direction). I will refer to the factors identified in the Direction below, and also note that considerations are to be informed by the following principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
On the basis of Mr Tolutau’s demonstrated criminal history (G6) and the material and submissions overall it is evident that he fails the character test. Therefore, the sole substantive issue in this matter is whether there is another reason the resulting mandatory cancellation of his visa should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
I take the following summary of key matters concerning Mr Tolutau’s offending from the sentencing remarks in the District Court (G8):
(a)the charge of import commercial quantity of border-controlled drug carries a maximum penalty of life imprisonment and due to Mr Tolutau’s plea of guilty the judge applied a discount of 25% to the sentence;
(b)after retrieving two backpacks form an international flight, Mr Tolutau stowed them in the footwell of a ‘tow tug’ and drove them to the domestic terminal and placed them onto a carousel where the co-offender took possession of them;
(c)the backpacks contained 35 kg of methamphetamine of a purity making this equivalent to just over 28 kg pure weight;
(d)the co-offender was immediately arrested, the Applicant’s security card was deactivated, and he was later arrested when departing the airport;
(e)the judge noted evidence presented by the Crown that a ‘practice run’ following a similar set of procedures was conducted a month prior to the offence in question;
(f)upon his arrest the Applicant was in possession of two standard mobile phones and an encrypted mobile phone with M2M sim card, a similar device also being in the possession of the co-offender;
(g)the judge relied upon the report of Mr Bradley Jones, forensic psychologist, for the explanation given by Mr Tolutau’s involvement in the enterprise, being that he was approached to assist in exchange for $10,000 and he agreed as he was experiencing financial difficulty;
(h)a range of observations were made in the report about Mr Tolutau’s mental state overall, and the judge considered support for the findings from administration of various testing instruments might be found in the Applicant’s significant period on remand;
(i)Mr Tolutau expressed his disgust, shame and embarrassment at engaging in the importation, and recognised that he had failed his obligations to his wife and children, and the judge accepted this contrition and remorse;
(j)the judge noted that the offence amounted to a subordinate role in an organised crime enterprise, and Mr Tolutau contributed by moving to a location outside his expected duties;
(k)the drug trade affects the economy, and its investigation also carries a cost and, while the amount of drugs was significant, the judge stated that there are far worse cases that might be brought for sentence;
(l)however, there was a measure of premeditation and a breach of trust, the offending fell just below the middle range and, unless intercepted by police, Mr Tolutau would have been instrumental in helping to release ‘poison’ into the community; and
(m)his prospects for rehabilitation were good.
Mr Tolutau’s criminal history (G6) reports a court appearance in 2013 on a charge relating to property damage, which was dealt with under s 10 of the Crimes (Sentencing & Procedure) Act 1999 (NSW). In short, having complied with the resulting bond, this matter was treated as dismissed and is not considered a criminal conviction.[1]
[1] See also ASFIC [22], [24] and RSFIC [28].
In his written statements and oral evidence, Mr Tolutau acknowledged his offending, and confirmed the explanation for his involvement being financial gain. The actual nature of any financial need at the time of the offending was not clarified to any meaningful extent in either the Applicant’s evidence, nor that of his wife.
Mr Tolutau was pressed during cross-examination about the circumstances of the offending. The Applicant stated in evidence that he had been approached to participate in the importation scheme. He also stated that he had been provided with the encrypted phone, but otherwise declined to answer further questions about matters preparatory to the events at the airport.
The Respondent’s representative submitted that Mr Tolutau had the protection to the extent necessary of the common law privilege against self-incrimination, and I restated this for the Applicant’s benefit. I note that the Administrative Review Tribunal Act 2024 (Cth) does not replicate the previous s 61(2) of the Administrative Appeals Tribunal Act 1975, under which a witness could not be compelled to answer questions in these circumstances, for the reasons mentioned in the Respondent’s submission.[2]
[2] Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth) [736].
In cross-examination, Mr Tolutau appeared somewhat equivocal when asked to identify whether a friend or work colleague asked him to participate in the drug importation scheme. After some further questions he agreed that he had ‘a feeling’ the plan was illegal. Mr Tolutau also stated that he did not know what the contents of the backpacks were until after his arrest. The Applicant stated that he is no longer in contact with the other people involved, and stated his intention is to focus on his family in the future. He also stated that the matter was serious because drugs put the Australian community at risk.
Mr Tolutau was also taken in cross-examination to material concerning the 2013 incident (S8). He agreed that he caused damage to a vehicle while intoxicated.
It was conceded for the Applicant in submissions at the hearing that drug importation should be considered very serious offending. It was also contended that the guilty plea and resulting sentencing discount are in Mr Tolutau’s favour and he has a limited offending history.
The Respondent similarly submitted that the offending should be considered very serious, and contended that Mr Tolutau’s sentence of imprisonment was long. It was contended that consideration be given to the impact of illicit drugs in the community with reference to material from the National Drug Strategy 2017-2026 (S19). Regardless of how far down the ‘pecking order’ the Applicant was, it was submitted that Mr Tolutau played a vital role in this organised crime endeavour.
With respect to the 2013 incident, the Respondent submitted – properly – that I am not to consider this as an instance of criminal offending. However, it was submitted that I can take this into account the underlying conduct, particularly given Mr Tolutau’s admission in evidence. It is put in the RSFIC that this demonstrates ‘some frequency of criminal behaviour and a trend of increasing seriousness’ under the Direction.[3]
[3] RSFIC [29].
Drug crime is not specifically identified in the Direction as offending that is to be considered ‘very serious’ (8.1.1.(1) a)). However, I agree with the parties’ submissions that Mr Tolutau’s crucial role on the ‘air side’ of airport operations in the importation of commercial quantity of methamphetamine is to be considered very serious offending. I am unable to find in the sentencing remarks any explicit reference to the Applicant’s level of knowledge about the contents of the backpacks, albeit it appears his co-offender claimed not to know the nature of the drugs or volume.[4]
[4] G8 [65].
I do not agree, however, with the Respondent’s additional contention. I am permitted to afford weight to the 2013 incident as ‘other conduct’ within the terms of the Direction, however as it is not ‘offending’ conduct I do not consider I have the latitude to give it weight when addressing the frequency of offending or repeat offending (8.1.1(1) e), f)).
Given the time that has passed since the 2013 incident, its isolated nature and apparently limited scope and impact, I consider that I should give this virtually no weight in this primary consideration.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In a letter to the sentencing judge in 2020 (G29), Mr Tolutau expresses disgust, embarrassment and shame at this offending. He acknowledges the impact it had upon his family. The Applicant states that he ‘should have known better’ and ‘cannot believe’ he was a part of bringing drugs into the community. Mr Tolutau also describes seeing the devastating impact of drugs upon society from his time in prison. He also notes that the thought of uprooting his wife and children to live with him in the US if deported weighs heavily upon him. Mr Tolutau declares he will not harm his family or the community again.
In a statement made in 2020 (G31) Mr Tolutau states that he maintains a minimum-security classification in prison. He also states he has undertaken welding and metal work in an effort to improve himself. In a statement from May 2024 (G33), Mr Tolutau describes a range of further work undertaken in prison. He goes on to state that his case manager obtained a Bridging Visa, granted in mid-2022, that allowed him to undertake Off Complex Community Projects.[5] The Applicant describes several charity activities that he engages in several times a week as part of this program.[6] He states this has motivated him to undertake charity and youth work upon release.[7] Mr Tolutau then lists numerous vocational courses undertaken in prison.[8]
[5] G33 [12].
[6] Ibid [13].
[7] Ibid [14]-[16].
[8] Ibid [17].
In a statement made in October 2024 (HB1), Mr Tolutau describes his history of drug use, involving experimentation with marijuana when young, and a number of instances of cocaine use.[9] He states that he does not agree with drugs, or use them. The Applicant declares that he was not eligible for drug and alcohol rehabilitation courses while in prison.[10] I note this statement refers to an assessment on 15 May 2023 which aligns with a NSW Corrective Services record of the same date.[11] This record describes Mr Tolutau as not eligible for two specific general offender programs.
[9] HB1 [6]-[7].
[10] Ibid [9].
[11] G75 [246].
With reference to a further statement made in November 2024 (HB8), Mr Tolutau gave evidence at the hearing about his off complex work. He stated that he undertakes a range of activities including ground maintenance at different locations, and test-and-tag and other general forms of assistance at an opportunity shop. This work goes on five days a week in groups of six-to-eight together with a supervisor.
With respect to the report of Mr Jones, Mr Tolutau denied trying to mislead the writer by failing to reveal his history of cocaine use. When asked if he intended to undertake therapy in the future, the Applicant replied that he would do so ‘if I feel I need it’. The Applicant stated that if released he would undertake whatever work he could, taking into account his criminal record. He stated that his brother-in-law has offered him work in his gym, and he stated in later evidence that he would work in construction or carpet installation, the latter based on previous experience assisting his father in the US, including for a time in 2017. Mr Tolutau also identified previous work in container management and train carriage refurbishment.
The Applicant was asked about his future earning capacity and the likelihood of again facing financial pressure. It was put to him that he would possibly earn less in the future than at the time of the offending. Mr Tolutau denied that he would respond in the same way to any financial pressure, and that he had wasted time by being imprisoned.
In further evidence during re-examination, Mr Tolutau confirmed that both his father and father-in-law are pastors. He stated that he speaks to them regularly and he agreed that this also involves an element of ‘counselling’. In response to questions from myself, the Applicant stated that he has grown stronger in his faith since the offending. I also noted an appearance change compared to photographs of Mr Tolutau (HB11). Mr Tolutau stated that he has become a regular gym user to help with his mindset, and that he cut his hair on 25 December 2019 ‘to be reborn’, as he wanted to move on from the past.
Mrs Tolutau confirmed, consistent with her recent statement (HB2), that she continues to work as a flight attendant, and also works as a theatre nurse. Both witnesses confirmed that their middle child (‘V’) was involved in a car accident in 2023 leading to orthopaedic surgery. A metal rod is to be removed from the child’s leg in the future, and the costs of medical intervention and rehabilitation are covered by compulsory third party insurance. I understand from the material overall, including Mrs Tolutau’s written statements, that they have been somewhat shunned by the Tongan community due to the nature of the Applicant’s offending.
In his report (G34/O), Mr Jones records Mr Tolutau as having a largely happy and unremarkable childhood. As noted, reference to casual drug use does not include cocaine. While Mr Jones reports that Mr Tolutau has no prior mental health history, he also states that the Applicant believes he developed some anxiety in 2017 due to worry about financial issues. He states further that Mr Tolutau reported that the family experienced emotional difficulties associated with the death of his wife’s mother. The Applicant also considered assisting with the drug plan might offer an opportunity for him to make amends with his wife for previous personal issues that had arisen between them, now resolved.
The report offers a relatively lengthy summary of considerations arising from the application of a number of assessment instruments, including risk of re-offending. Ultimately, Mr Jones gives the opinion that the offending behaviour was not associated with any psychological condition, and that Mr Tolutau had not experienced any such condition. Mr Jones states that the Applicant has a low risk of re-offending.[12] Mr Jones states that factors relevant to re-offending are ‘Financial and Leisure/Recreation’ and identifies several factors as relevant to reducing the risk of recidivism.[13] These include vocational and skills training, interpersonal therapy to develop communication strategies, and support networks to limit destabilising influences.
[12] For completeness, I note that the report refers to a person of another name here [28], but this has not been the subject of any comment from my understanding of the materials in this matter, and I give it no weight.
[13] G34/O [30]
Among the wider group of statements lodged by the Applicant, I note as follows:
(a)Mr Tolutau’s brother-in-law confirms his offer of gym work and states he is committed to providing support in any way he can (HB5);
(b)the Applicant’s father-in-law states that he has spoken with Mr Tolutau about his offending, offering ‘counsel, penance and forgiveness’, and confirms that he is prepared to offer all support necessary should the Applicant remain in Australia (HB6); and
(c)press material speaks to the positive impact of activities undertaken by Mr Tolutau and other inmates in the community (HB9).
Various pieces of material indicate that Mr Tolutau is in the process of being assessed for eligibility for parole (HB7, S17). What appears to be a draft pre-release report indicates that Mr Tolutau would not be eligible for programs should he remain in custody, without specifying further, but he would continue with employment and training activities.[14] A risk mitigation plan from September 2024 indicates that Mr Tolutau’s family are aware of his offending and represent pro-social influences as they do not condone his offending.[15]
[14] S17, 55.
[15] S18, 59.
I note what appears to be a summary of corrections case note reports in submissions apparently lodged by Mr Tolutau’s representative in June 2024 (G56). There is an indication of a period of behavioural issues, but the summary otherwise records positive reflections on the Applicant’s behaviour, including his selection to participate in the off complex work.
The medical condition of V is addressed at some length in a number of pieces of material, and is consistent with the summary set out above (G35, 36; G54).
The Applicant’s closing submissions addressed Mr Tolutau’s contrition and remorse. It was contended that he has undertaken what was described as ‘sufficient’ rehabilitation, has demonstrated a commitment to being a better person, and is working in the community while in prison. It was submitted that this latter fact means that the Applicant’s rehabilitation has been tested in the community. The efforts he has made to better himself indicate, it was submitted, that he will be able to engage in meaningful employment.
Mr Tolutau’s family support was cited as a positive factor for his return to the community. In particular, it was submitted that the presence of two pastors in his life indicates that the Applicant is surrounded by the right people. It was also contended that the evidence which indicates Mr Tolutau has been rejected by their community offsets the risk to the community. I understand this submission to be suggesting that moral condemnation has a salutary effect on Mr Tolutau. The Applicant’s written submissions support and reinforce these primary contentions.[16]
[16] RSFIC [27] – [48].
For the Respondent it was submitted that the risk of any future harm arising from re-offending was significant, given the serious nature of the offence. It was also submitted that there is a discernible and significant risk of reoffending. Specifically, it was contended that while Mr Tolutau demonstrates a degree of insight, he has not undertaken rehabilitation to address the underlying causes of his offending. It was acknowledged that access to programs in prison may be constrained.
It was contended that if released, Mr Tolutau was likely to return to exactly the same social and financial circumstances as at the time of the offending: the Applicant resorted to crime under financial pressure, and the evidence supports the view that he readily agreed to participate. It was also submitted that his explanations about the background to the offending were implausible, indicating that he has limited insight. It is contended in written submissions that Mr Jones recommended further treatment to manage the risk of recidivism, and the Applicant in the past had sought to minimise his involvement in the offending.[17]
[17] RSFIC [36].
The Direction focuses initially upon consideration of the nature and seriousness of any future harm that may arise from re-offending (8.1.2(1), (2) a)). I consider that the Respondent is correct to identify that future drug-related offending has the potential to cause substantial harm to the community, and that Mr Tolutau’s sole instance of prior criminal offending serves as a guide to any future possible offending.
I am also to have regard to any information and evidence on the risk of re-offending (8.1.2 (2) b)). Chief among the relevant pieces of evidence is the report of Mr Jones. I am to have regard to information and evidence from independent and authoritative sources (7(1)), and accordingly I place significant weight upon this report and the finding that Mr Tolutau was assessed in 2020 as at a low risk of re-offending.
I noted above that the sentencing judge appeared to read down the wider commentary in Mr Jones report about the results of certain assessment instruments. I agree with His Honour’s finding that this material is best read as referring to the Applicant’s state of mind arising from his – at that point – relatively lengthy detention. I also place some weight on the fact that Mr Tolutau has had no history of either substance abuse or disorder, nor any form of diagnosable mental health condition.
I am also to have regard to evidence of rehabilitation achieved (8.1.2(2) b)). I accept that the Respondent has identified limited if any engagement with the therapies identified by Mr Jones. These recommendations were not clearly addressed to the resolution or improvement of any substantive underlying condition. Further, the evidence does indicate that Mr Tolutau has been prevented from undertaking any structured offending-related programs. In his favour, however, there is some relevant evidence that he has undertaken informal counselling with clergy within the family.
Perhaps more importantly, the Applicant has a low security classification and has engaged in quite extensive community work, under limited supervision. I do not entirely accept the submission that this is akin to Mr Tolutau’s rehabilitation being tested in the community, but it does indeed reflect a significant level of trust from the corrections system. It therefore speaks relevantly to the question of risk. This activity comes on top of quite a degree of other work and training in prison. These were also identified as areas for follow-up by Mr Jones. Further, I consider that Mr Tolutau’s own evidence, and demeanour, demonstrate a greater level of insight and personal development that that described in the Respondent’s submissions.
In short, the evidence overall demonstrates that the Applicant has taken advantage of the relevant opportunities afforded to him under the circumstances. In Mr Jones opinion, such relevant engagement was expected (in 2020) to contribute to the reduction of the risk of re-offending from ‘low’. While it is well understood in these matters that there is no better rating than ‘low’, I place real weight on the efforts made by the Applicant in the context of Mr Jones findings.
Summary finding
The Respondent highlighted in submissions that the Direction holds that tolerance for future offending reduces with its seriousness, and therefore contended that very heavy weight against revocation should be placed on this primary consideration.
I have found that Mr Tolutau’s offending should be considered as very serious. I have also found that there is likely to be substantial harm caused by future similar offending. I have also found that the Applicant has demonstrated important steps toward rehabilitation, including his participation in a community work program whilst still in prison. I have accepted that he was previously assessed as a low risk of reoffending, and I have found that weight must be afforded to the fact that this risk is now further mitigated.
Overall, I find that this primary consideration weighs moderately heavily against revocation.
Family violence committed by the non-citizen
There is no evidence or material in this matter indicating this primary consideration is engaged. Accordingly, it weighs neutrally.
The strength, nature and duration of ties to Australia
This primary consideration requires consideration of ‘any impact of the decision upon the non-citizen’s immediate family members in Australia’, where they are citizens, permanent residents or otherwise with a right to permanently reside (8.3(1)). Where, as here, the decision involves revocation, consideration must also be given to the strength, nature and duration of other ties to the Australian community (8.3(2)).
With respect to the first element of this primary consideration, the written and oral evidence of Mrs Tolutau was that, in the event the Applicant’s visa cancellation is not revoked and he is turned to the US, she will also move to the US with her children.
The circumstances of the three children are outlined in Mrs Tolutau’s statement from May 2024.[18] They are aged between six and ten years and, as noted above, she explains here that V was the victim of an accident in late 2023. In this statement, Mrs Tolutau states that she, V, and his older brother all suffer PTSD from the accident, which is supported by medical material.[19] As noted by Mrs Tolutau, this material includes a recommendation (described as a ‘pressing need’) for family therapy.
[18] G52 [2] – [17].
[19] G54 [55].
In her statement, Mrs Tolutau describes the sporting activities of all children, and the close relationships between her children and their young cousins. The family relationships more generally are then addressed in further detail.[20] Mrs Tolutau states that she and the children have in the past cohabited with a sister’s family, and currently live downstairs from the same sister and her family in an apartment building. She notes that her father lives in Brisbane, buts visits regularly. In evidence, Mrs Tolutau stated that he has a medical condition that limits his air travel.
[20] G52 [18] – [28].
The effect of leaving Australia is also addressed in this statement.[21] Mrs Tolutau states that she does not have extended family in the US, and they do not have any friends of social connections there. She states that her family are all concerned about the possibility of a move to the US. As noted, evidence was given about the need for future surgery for V. A particular focus of this evidence was Mrs Tolutau’s concern that the family would have difficulty covering the costs of medical treatment in the US.[22] Mrs Tolutau accepted in evidence that she and the Applicant would likely be able to find employment in the US. She also stated that she had travelled frequently to the US for work and continued to do so.
[21] Ibid [34] – [38].
[22] Ibid [35].
In his statement (HB6), Mr Tolutau’s father-in-law states that his health is not good due to heart issues. He states that the relocation of his daughter and her children to the US would create ‘strain and hardship on us all’, and that it is ‘not advisable’ that he travel to the US due to his heart and arthritis.
For the Applicant, it was submitted that he has ‘cemented’ his ties to Australia while living and working here. Mr Tolutau’s immediate family represent his main ties, but it was also contended that the Applicant has a support network comprised of a wider group of his wife’s family members, as confirmed in written statements. These matters are addressed separately in the Applicant’s written submissions.[23] It is submitted that this consideration be given heavy weight in favour of revocation.
[23] ASIFC [55] – [66].
The Respondent submitted that the Applicant’s ties to Australia are represented in particular by his relationship with his wife and children. However, in circumstances where they would accompany him to the US, this moderates the impact of this consideration. It was contended his offending led to a reduction in the social circle enjoyed by Mr Tolutau and his family, also weakening the relevance of this consideration. In written submissions, the Respondent acknowledged Mr Tolutau’s presence in Australia and contribution through various forms of employment prior to incarceration, such time reduced accordingly by time in prison.[24] It is submitted that this consideration weighs in the Applicant’s favour but does not attract significant nor determinative weight.
[24] RSFIC [42].
In relation to the first element of this consideration, I find that the likely consequence of a decision against revocation is the relocation of Mr Tolutau’s immediate family to the US. The written and oral evidence overall demonstrates that this would carry an emotional impact upon the immediate family from being separated from their close relatives, with whom I accept there are strong and ongoing bonds. I also consider it open to find that, on its face, the relocation of the immediate family unit will carry disruption and inconvenience for them. In short, it is a highly relevant consideration that, the Applicant aside, his immediate family are and have always been Australian citizens and residents. I will address below the more specific question of the implications of that impact upon Mr Tolutau’s children.
In relation to the wider considerations arising here, I must take account of Mr Tolutau’s ties in the context of his life story, noting for example that he arrived here as an adult and spent seven years contributing to the community through employment (8.3(2) a)). The evidence overall indicates that Mr Tolutau has ties to extended family, as well as to some friends or colleagues (8.3(2) b)).
I find that this consideration weighs moderately heavily in favour of revocation.
Best interests of minor children in Australia affected by the decision
In this primary consideration, the best interests of each child under 18 affected by a decision not to revoke visa cancellation must be given individual consideration, to the extent they differ (8.4(1)-(3)).
The written and oral evidence overall supports the view that Mr Tolutau has had a loving and close relationship with this three biological children. Communications from the children are included in the materials. I note the definitive list of the Applicant’s nieces and nephews from his wife’s family appears to be in his Personal Circumstances Form (G24). Some consideration has been given above to the related family ties and I take that into account also here.
I have also set out above the basic concerns that arise with respect to V as a result of this accident in 2023. I have also set out briefly above evidence concerning the circumstances of all the children, which I also rely on in relation to this primary consideration.
It was submitted for the Applicant that he has a ‘living’ parental relationship with his children and has maintained this to the extent he is able while in prison. Submissions at the hearing focussed on the emotional hardship of separation. Written submissions also address Mr Tolutau’s role as an uncle to six named children.[25]
[25] RSFIC [70].
The Respondent submitted that Mr Tolutau’s relationship was ‘tempered’ by the reality that they have been parented in recent years by their mother. It was also contended that this consideration is affected by the fact that the evidence is that Mr Tolutau’s family would follow him to the US. In short, this was described in submissions as presenting for the children the ‘mirror image’ of their life in Australia. I understood this to mean the children would have contact with grandparents and cousins, and that their parents are likely to secure employment.
On the subject of future medical treatment for V, the Respondent contended that there is no predictable pattern of medical cost in the US and it would be unsafe to assume that this would be out of reach due to cost. It was specifically contended that since treatment consequent upon the motor accident is covered in Australia, V could travel back to Australia to undertake any surgery or rehabilitation. It was submitted otherwise that less weight be afforded the interests of Mr Tolutau’s nieces and nephews in Australia due to the non-parental relationship between them.
Overall, as a result of the evidence about relocation, it was submitted this primary consideration be given limited weight in favour of revocation.
The Direction sets out specific factors to be considered in respect of each child whose interests arise for consideration (8.4(4)). I consider that the Respondent is correct to submit that this consideration needs to be read in the light of the evidence concerning family relocation to the US in the event of a non-revocation decision. I make the following findings:
(a)Child V: I consider that Mr Tolutau’s middle child has particular interests arising from his medical situation. The Respondent makes a ‘bare bones’ contention about the possibility of return visits to Australia that carries some sense of plausibility, however there is quite a degree of speculation associated with all aspects of the subject of future medical treatment. The nature, timing and cost of treatment are unknown, as is the social and economic outcome of relocation for the family unit. On balance, however, I consider that V’s interests would be clearly impacted by a decision not to revoke Mr Tolutau’s visa cancellation, and this weighs moderately heavily in favour of revocation;
(b)Other biological children: I consider that Mr Tolutau’s other children are likely to be subject to a much lesser impact form a non-revocation decision, albeit I consider that the need to relocate raises the prosect of uprooting them from their environment with consequent impact over the short term. I find that this weighs in favour of revocation.
(c)Nieces and nephews: I accept that Mr Tolutau has had a close non-parental relationship with six named children of his wife’s family, and I give this some limited weight in favour of revocation.
On balance, and taking into account my findings in respect of individual children, I find that this consideration weighs moderately heavily in favour of revocation.
Expectations of the Australian community
It was submitted for Mr Tolutau that this consideration weighs against revocation, but only slightly. This weighting was due to the fact of only a single very serious offence, and the low risk of re-offending. The Respondent also contended that this consideration weighs against revocation.[26]
[26] RSFIC [56].
This consideration is expressed as a norm, and reflects principles stated in the Direction that the Australian community expects non-citizens to be law-abiding, and that they expect the Government not to allow such persons to remain in Australia (8.5(1)). The Direction states that non-revocation may be appropriate because of the nature of character concerns arising, and certain forms of conduct are identified as representing conduct of such concern that no level of risk of future offending can be considered acceptable (8.5(2)-(3)).
I have found that Mr Tolutau’s offending was very serious and for this reason, and the deemed expectation expressed in this primary consideration, I find that it weighs against revocation.
OTHER CONSIDERATIONS
Of the three specified other considerations, there is no evidence to indicate that the decision will have an impact on Australian business interests. Accordingly, this other consideration weighs neutrally.
Due to the nature of the statutory question being addressed I am not limited to any particular set of other considerations. No submission was made that I should take into account a particular additional consideration, and I do not consider the circumstances raise any other matter for inclusion.
Legal consequences of the decision
This consideration is framed around the detention of unlawful non-citizens until their removal from Australia as soon as reasonably practicable, in the context of potential claims of harm that may arise upon their removal to another country (9.1(1)-(3)).
Mr Tolutau and his representatives have not raised claims of harm, and the circumstances of this matter also do not raise the likelihood of such claims. However, I accept that the result of a decision not to revoke the mandatory cancellation of his visa would be a period of immigration detention.
Both parties submit that in circumstances of non-revocation, the Applicant would be captured by the so-called ‘special return criteria’ under Schedule 5 of the Migration Regulations 1994 (Cth). Whilst this was not fully fleshed out in submissions, I accept this is a relevant legal consequence of a decision, albeit not one immediately related to the specified focus of this other consideration.[27]
[27] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]-[14].
Overall, I find that this other consideration weighs slightly in favour of revocation.
Extent of impediments if removed
This other consideration requires consideration of the extent of any impediments a non-citizen may face if removed to their home country by reference to establishing and maintaining basic living standards (9.2(1)).
Mr Tolutau is still a relatively young man and has no identified health issues. There is no dispute in this matter that he will not face any language or cultural barriers in the US.
The Applicant gave evidence that he would live with his parents if returned to the US. He stated that his mother is retired and his father is considering retirement. Mr Tolutau agreed that there was a prospect that he may be able to take over his father’s carpet installation business. Written evidence indicates that Mr Tolutau’s parents have a large house and also that they presently host two generations of a large number of immediate family. The Applicant stated he was not entirely sure how they would manage to house him and his own family.
It was submitted for Mr Tolutau that he faced very limited barriers in the US if removed from Australia. It was also submitted at the hearing and in written submissions that the Applicant may face issues with employment due to his criminal record.
The Respondent contended that Mr Tolutau grew up in the US and has a history of work experience there, as recently as 2017. It was also submitted that given the Applicant’s criminal record is in Australia, this is less likely to be an impediment. In short, it was contended that after a brief period of possible emotional hardship, Mr Tolutau would overcome any impediments and that this consideration be given limited weight in favour of revocation. Written submissions also address under this consideration the support that will be provided to Mr Tolutau by his own immediate family in the US.[28]
[28] RSFIC [65].
There is no evidence either way in this matter as to the possible impact of Mr Tolutau’s Australian criminal record. I therefore consider I am unable to give this particular factor specific weight for or against revocation. In general, however, I otherwise agree with the Respondent’s summary which is that after an initial period of difficulty, Mr Tolutau will be able to reestablish himself in the US with little or no practical impediment.
Accordingly, I find that this consideration weighs only slightly in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that Protection of the Australian community from criminal or other serious conduct weighs moderately heavily in favour of revocation and Expectations of the Australian community weighs against revocation. I have found that Strength, nature and duration of ties to Australia and Best interests of minor children in Australia weigh moderately heavily in favour of revocation. The remaining consideration concerning family violence weighs neutrally.
Of the other considerations, I have found that Legal consequences of the decision and Extent of impediments if removed both weigh slightly in favour of revocation. The remaining consideration concerning business interests weighs neutrally.
Among the primary considerations, the Direction states that Protection of the Australian community is generally to be given greater weight, and primary considerations should be generally given greater weight than other considerations (7(2)). In addition, one or more primary considerations may outweigh other primary considerations (7(3)).
This is not a matter in which length of time spent living in or contributing to the Australian community is a particularly relevant, or indeed determinative, factor. Mr Tolutau has also breached in a serious manner the expectation that he abides by the law, and this is reflected in the severity of the sentence imposed for his single instance of criminal offending.
That said, Mr Tolutau has otherwise committed to Australia and the Australian way of life, and this is his home. His offending, while concerning and largely unexplained by lifestyle of other personal background, is isolated. I have found that the Applicant has made the most out of his incarceration, and appears to be on a path that reduces an already low risk of re-offending. For these reasons, overall, I do not consider that his history raises particularly serious character concerns, nor that the limited risk of re-offending is unacceptable.
The relevant considerations, nonetheless, remain relatively finely balanced. This is due to the stated plan for family relocation to the US, the existence of loving family support there, and Mr Tolutau’s personal capacity to re-establish himself there. However, I do not consider the circumstances overall, due to my specific findings, warrant the need to place Protection of the Australian community above the other primary considerations that weigh in favour of revocation.
These considerations, together with the other considerations weighing in favour of revocation, support a finding that there is another reason to revoke the mandatory cancellation of Mr Tolutau’s visa.
DECISION
For the reasons given above the Tribunal sets aside the decision dated 27 August 2024 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa and substitutes it with the decision that there is another reason why the mandatory cancellation should be revoked.
Date(s) of hearing: 7 November 2024 Solicitors for the Applicant: W. Milojkovic, Milojkovic Visa & Migration Legal Services Solicitors for the Respondent: J. Fyfe, Minter Ellison
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