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

[2022] AATA 4524

^{TSVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4524 (7 December 2022)}

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/7736
General Division	)

Re: TSVN
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member Dr N A Manetta

DATE OF CORRIGENDUM: 5 January 2023

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. The Tribunal file number is replaced with “2022/7736” from “2022/7089”.

...................................................................

Dr N A Manetta

  (Senior Member)

Division:GENERAL DIVISION

File Number(s):2022/7736      

Re:TSVN   

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:7 December 2022

Date of written reasons:        4 January 2023

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

......................[sgnd]..................................................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – whether another reason for revocation of cancellation decision – Direction 90 – serious offending including family violence - best interests of minor children – child exhibiting behavioural concerns – protective factors on release of applicant to Australian community –  on balance decision set aside and revocation of cancellation decision substituted

Legislation

Migration Act 1958 (Cth)

Cases

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1]  These are the reasons I read out to the parties with some amendments.

   [1] I note that these reasons include certain paragraphs that have become standard in my decisions; in particular, [5] and [28].

2. This is an application by “TSVN”, a citizen of Fiji, whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. He seeks a review of a decision of the respondent’s delegate dated 14 September 2022. By this decision, the delegate declined to revoke the cancellation of the applicant’s class BC subclass 100 spouse visa. The cancellation had taken place earlier, and mandatorily so, under section 501(3A) of the Migration Act, 1958 (“the Act”). The cancellation took place after the applicant was convicted of the offence of aggravated break and enter of a dwelling in company. He received a term of imprisonment of more than 12 months, part of which he was required to serve on a full-time basis in jail. On my review, the initial cancellation decision was appropriately taken given the terms of section 501(3A).

3. The applicant made a timely application for an internal review. The delegate who was tasked with the determination of the internal-review application was required to address two questions by section 501CA(4)(b) of the Act. The first question was whether the applicant passed the so-called “character test” elaborated in section 501(6) of the Act. The second question arose if the answer to the first question was “no”, and it was whether there was “another reason” for the cancellation decision to be revoked. In respect of this second question, the delegate conducting the internal review was required to apply Direction no. 90 issued under section 499 of the Act.

4. In answer to the first question, the delegate decided that the applicant did not pass the character test.  On my review, this decision was clearly correct. A person who has been sentenced to a term of imprisonment of 12 months or more is taken to fail the character test: see section 501(6)(a) and (7)(c).  In considering the second question, the delegate identified and weighed the various considerations under the Direction and concluded that, on balance, they did not favour revocation of the cancellation decision. Accordingly, the delegate did not find that there was “another reason” for the cancellation decision to be revoked.[2]  As a consequence, the applicant’s visa remained cancelled.

   [2] The delegate’s decision and reasons appear at Exhibit R1, pp 19ff.

   TRIBUNAL’S TASK

5. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions, although I have already indicated that the delegate’s answer to the first question was correct.  In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] The Tribunal hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own final conclusions. It does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.

   [3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].

6. At the hearing before me, Mr Ehimudiamen appeared for the applicant; Ms Pieri, for the respondent.  I am indebted to them both for their assistance to me.

   STATEMENT OF CONCLUSION

7. I have decided to set aside the decision under review. I now turn to set out the background facts and the reasons for my conclusion.

   BACKGROUND FACTS

8. The applicant gave evidence before me.  He was 42 years of age at the time of the hearing. He was born in Fiji and lived his early years there in a village.  Apart from Australia, to which he first came in 2006, he has only lived in Fiji. As I understand his evidence and that of Ms S, his ex-spouse, the applicant’s father was a Canadian and his mother a Fijian. The applicant was raised by his grandmother and an uncle, the latter of whom treated him harshly. I accept that the applicant was abused severely during this early time of his life.

9. The applicant completed Grades 1 to 6 in a village school and also completed up to Form 6 in high school. I accept the applicant’s evidence that his scholastic attainment was impaired by his having to work several hours each day before school started, and he struggled with English.  I note that the applicant gave his evidence at the hearing through an interpreter. 

10. He did not attend a tertiary institution in Fiji, but he did do several courses in information technology. Unfortunately, a lack of financial means meant he could not complete all certificates and proceed to a diploma.

11. He began work by doing a few odd jobs at the resort where his mother was employed and then began work in the resort’s diving department filling oxygen tanks.  He worked in a coffee shop and then as a barman in a nightclub. He met his future wife, Ms S, there. They began a relationship soon after they met and married in September 2007.  Before that time, the applicant had already had two children of his own but not with Ms S. He had a daughter (F) and a son (T). His daughter F was born in 2002; his son T, in 2006. Each of these children was born to a different mother in Fiji.

12. The applicant came to Australia to live with his wife, Ms S, in 2008. The applicant and Ms S separated in 2010 and eventually divorced in 2013. 

13. The applicant and Ms S had a child of their own, K. In addition, T, the applicant’s child from an earlier relationship in Fiji, came to live with them in Sydney.  In fact, Ms S adopted T and is now his mother.  I am satisfied that she fulfils that role in relation to him.  In the applicant’s absence, she now has, in effect, sole parental responsibility for two children.

14. The applicant has a number of other children through other relationships. They are listed in his personal circumstances form: see Exhibit R1, p 80. All in all, the applicant has fathered some seven children with five women.  Six children live in Australia.

15. The applicant gave evidence that he had a very good relationship with Ms S at the commencement of their marriage. I accept that evidence.  In fact, he was employed in Ms S’s father’s chemical factory. He was paid well for his work, and he and Ms S enjoyed comfortable accommodation in a more affluent Sydney suburb.  

16. I turn now to consider the applicant’s criminal offending.  The applicant’s criminal record was in evidence before me: see Exhibit R1, pp 45-51.  The applicant’s offending is extensive. It is not necessary to traverse all offences. 

17. The offending commenced at about the time the applicant’s relationship with Ms S foundered.  The first offence in fact involved an assault upon her. She gave an account of the offending which I accept.  From the time of his arrival in Sydney, the applicant had developed a drinking habit, which became excessive. There were frequent arguments between them on account of his habit. One particular evening, when the applicant came home intoxicated and an argument ensued, he struck Ms S while she was with T, who was only about four at the time.  T was in fact caught up in the struggle and suffered an injury in the attack.  Ms S telephoned her parents and they attended the premises.  Seeing his daughter had been struck, Ms S’s father rang the police and the applicant was charged and convicted. The applicant was placed on a 12-month bond by the court, and the record of conviction notes that he was to continue with alcohol counselling and treatment for as long as deemed necessary.

18. I accept the evidence given by the applicant that the end of his relationship with Ms S also led him to experiment with drugs; in particular, methamphetamine or “ice” as it is commonly known.  The applicant became dependent upon this notoriously addictive and destructive drug.  I accept his evidence that the last time he used the drug regularly was in May 2020, but before this time he consumed it regularly.

19. I note that much of the applicant’s extensive offending has involved dishonesty and being in possession of goods suspected of being stolen. There is also a very large number of offences in the years 2012 to 2014 involving unlicensed driving by the applicant. The recorded offence reads, in fact, that the applicant had never been licensed, which I take at face value. One offence in 2012 involved driving with a high-range blood-alcohol level.  There is an offence of possession of equipment for administering prohibited drugs in 2015 and a possession of a prohibited drug in 2016 (twice), and a further possession offence in 2017. There is an offence of resisting, or hindering, a police officer in 2016 which resulted in a term of imprisonment term of seven months, although it was suspended. I further note that there were, in 2017, offences in relation to contravening a prohibition or restriction in an AVO and an offence of stalking/intimidating a person. The offence of stalking/intimidating involved the applicant in running towards the victim while armed with a sword.  There is also an offence of being in custody of a knife in a public place in 2019.

20. Many of these offences attracted terms of imprisonment but in the event they were suspended (often after entry by the applicant into a bond or other formal undertaking). On 5 May 2016, however, the applicant was required to serve a seven-month term of imprisonment (with a four-month non-parole period) in respect of a large number of offences listed at pp 48 to 49 of Exhibit R1. The offences were typical of the defiant and disorderly, not to say antisocial, offending which had come to typify the applicant’s life at this stage. There was an offence of failing to appear in accordance with a bail acknowledgment, the possession of a prohibited drug, resisting or hindering a police officer in the execution of his or her duty, being in personal custody of goods suspected of being stolen, and being in possession of housebreaking implements. These are all, self-evidently, serious matters.

21. The sentencing remarks of the Drug Court were before me: see Exhibit R2, pp 422-424.  I have had regard to them and I note several matters. First, the applicant had been given ample opportunity to address his drug-dependence issues, and this is reflected in the remarks, but the applicant’s attention to the courses and counselling on offer was noted to be poor by the court. This failure had occurred in spite of the court having exercised leniency on an earlier occasion in terms of punishment. The applicant’s failure to engage meaningfully in the rehabilitation programs being offered resulted in the Court requiring the sentences to be served. Secondly, it is of real concern that the applicant, having had the benefit of repeated warnings and leniency so that he might participate meaningfully in rehabilitation programs, failed at that stage to take advantage of the opportunities offered him. Thirdly, I note that this was an occasion when the applicant entered jail for a significant period of time. This period ought to have inculcated an appreciation in him, even if the previous warnings had not, that his life was on a downhill trajectory and that he needed to end his drug-dependence and reform his life.

22. The applicant committed a number of offences after he left jail. These included  possession of a prohibited drug, and so it is clear that the applicant had not ended his dependence at this point. In 2019, the applicant was once again extended a degree of leniency when he received an intensive-correction order in respect of a number of offences most of which concerned dishonesty or larceny or being in personal custody of goods suspected to be stolen. It is of particular concern that that intensive-correction order did not deter the applicant.

23. On 10 August 2020, the applicant was found guilty of being in possession of goods suspected of being stolen. On this occasion he was sentenced to one month’s imprisonment which was to conclude on 9 September 2020.

24. Very concerningly, less than two months later, namely on 30 October 2020, the applicant was found guilty of an offence of aggravated break and enter in company. The term of imprisonment imposed by the Mount Druitt Local Court was two years with a non-parole period of 14 months.  On appeal, the sentence was reduced by the Parramatta District Court to a head sentence of 18 months; the non-parole period was reduced to 12 months. The non-parole period concluded on 29 October 2021. Shortly thereafter, namely on 13 November 2021, as I understand the applicant’s evidence, he entered immigration detention, where he has remained. This conviction led to the cancellation of the applicant’s visa. 

25. I had the initial sentencing remarks before me: see Exhibit R1, pp 52ff. The applicant was a member of a gang acting in concert. The Court noted that it was of particular concern that the applicant had stolen firearms and ammunition from  a locked safe. The Court referred to an element of planning in respect of the offending. The offence could not have been spontaneous as CCTV-footage showed that the accused had attended the premises on more than one occasion.  The applicant was on conditional liberty at the time of the offending which was, self-evidently, a serious matter. The Court referred to the applicant having committed other dishonesty offences of a similar nature in the past although not exactly of the same nature. The Court would have imposed a higher sentence than it did but was bound by its jurisdictional limit. The Court decided that the applicant’s prospects of rehabilitation were “guarded”: see Exhibit R1, p 55. It noted a community corrections report that indicated that the applicant accepted only limited responsibility for his behaviour. There is a reference to his failure to meaningfully engage in supervision in the past or with identified community-based services. He was assessed by the sentencing Court as having a medium risk of reoffending, which I accept.  As I have earlier noted, the sentence was reduced on appeal. More favourable remarks were made by the appeal Court: Exhibit R1, pp181ff.

26. I should add that I have considered and accept the helpful non-exhaustive treatment of the applicant’s offending that appears in the respondent’s Statement of Facts, Issues and Contentions (“SOFIC”): see Exhibit R3 at  paragraphs [18]-[22].

27. I also note there have been incidents in jail and in detention involving assaults: see the Respondent’s SOFIC, Exhibit R3, at [34].

    REASONS 

28. I turn now to apply Direction 90. I frequently refer to certain prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff. I usually set these paragraphs out, and I do so again here:

    32.  I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34.  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36.  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

1. The first primary consideration I must take into account is the protection of the Australian community from criminal or other serious conduct. I bear in mind the principle that appears in subparagraph (1) of paragraph 8.1.  This [principle requires me to keep in mind that the Government is committed to protecting the community form harm and that remaining in Australia is a privilege conferred in the expectation that non-citizens will be law abiding.

2. By subparagraph (2), decision-makers should also give consideration to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

3. Paragraph 8.1.1(1) sets out in subparagraphs (a) to (g) a number of matters that are pertinent to my consideration of the nature and seriousness of the applicant’s criminal offending and other conduct to date. 

4. By subparagraph (a), I am required to consider a number of types of offence as very serious. These include violent crimes and acts of family violence.  I have already referred to the assault upon Ms S.  Ms S was quite clear in her evidence to me that the assault upon her that was reported to police was the only instance of violence in their relationship. On balance, I do not accept that evidence. Of course, there are some partners who, quite rightly and sensibly, terminate a relationship after the first episode of violence.  It is often the case, however, that a partner will endure quite some frequency of violence before ending the relationship, particularly where children are involved and there is a desire, often misguided, to strive to preserve the family notwithstanding the violence.

5. I accept that Ms S was not dependent on the applicant; rather, he had a position in her father’s family business. She was clearly financially independent of him.   She presented as a confident and articulate witness. Nevertheless, I bear in mind that at the time of the assault, Ms S had already endured many occasions where the applicant had come home drunk. I have decided that it is more likely than not that the day of the assault was not the first occasion of violence. It would be a rather unusual coincidence that an argument over the applicant’s drinking should have led to his assaulting her on that occasion but not on earlier occasions. I also think that if it had been the first occasion, it is not likely that Ms S would have proceeded with criminal charges given the potential consequences for the family unit.  Accordingly, I take into account that there must have been many occasions when the applicant assaulted Ms S. I proceed on that basis.

6. Given the applicant’s subsequent dependence upon ice, the difficulties he was facing after the failure of his relationship with Ms S, and given also his convictions for various breaches of AVOs and for stalking/intimidation, I accept that his other partner relationships in Australia have also been attended by violence. It is difficult to assess the degree and frequency of violence. There have been many reports to the police,[4] and I am prepared to accept these reports in the main.[5]  Some were admitted by the applicant in cross-examination.  That he has been frequently violent in his relationships with his female partners is a most serious matter.  He has also been violent in respect of the person in respect of whom he brandished a sword.

   [4] As set out in Exhibit R2.  See, for example, pp 557, 559, 561, 566-7.

   [5] I footnote one report however, which was raised with the applicant in cross-examination. (Ex R2, p 539).  The applicant maintained expressly that the alleged incident led to charges that were not pursued or were dismissed in the event and said that the final disposition of the charges could be checked with the Court or police.  The respondent did not take the matter much further in cross-examination, and I note that I did indicate at that point in the hearing that the matter should be taken further in cross-examination if the applicant’s evidence was thought by the respondent to be untrue. An impugning of the applicant’s truthfulness was not put to him as I believed in fairness it ought to have been if I were to rely on the police report.  In these circumstances, I decided that I should not accept the contents in the police report over the applicant’s sworn denial.  I should add here that whilst the Tribunal is not bound by the rules of evidence, this was a hearing where the parties were legally represented and the matter proceeded formally with examination-in-chief and cross-examination. Fairness required in this particular situation a more extensive and direct cross-examination if the respondent’s position was that the applicant’s denial of any assault should not be accepted.  But I note that my ultimate conclusion in this case would be the same even if this violent episode had occurred: it would be but one of many episodes of violence.

7. I regard the break and enter offence as very serious as well. There are a number of reasons for this conclusion. Subparagraph (a) makes it clear that the three types of crime specified in paragraphs (i) to (iii) are not the only types of crime that may be considered as very serious. The applicant was on conditional liberty, and in my opinion the commission of this crime whilst the applicant was on conditional liberty made the crime very serious, because it showed that the applicant was, in effect, heedless of the obligations he was under.  More importantly, I am concerned ‒ indeed, alarmed ‒ by the nature of the theft. The theft involved three particularly dangerous firearms, together with ammunition,  as described in the appeal Court’s remarks.[6] The firearms were not recovered by police in the event, and they have now entered, no doubt, the black market for such weapons.   They may well figure in future crimes of violence and robbery. 

   [6] Exhibit R1, p 182.

8. This crime poses a particular threat to the community. Not only has an individual’s private property been taken, but, so far as the community is concerned, further criminal activity has been facilitated by the applicant, whose crime has led to the transfer of serious weapons of violence to those prepared to acquire them unlawfully on the black market. That is a very serious matter, indeed.

9. The applicant could have co-operated immediately with police to ensure that the weapons were recovered. He did not.  Mr Ehimudiamen submitted that the applicant was entitled to exercise his right to silence when questioned by police. That is a correct statement of the legal position. If a person chooses to exercise that right but is subsequently convicted, he or she can scarcely be heard to say that the decision not to co-operate with police from the outset to prevent the dispersal of weapons in the community should not be held against him or her.  I regard it as a very serious matter that the applicant did not co-operate immediately with police to ensure the weapons were recovered.

10. The applicant has had many dishonesty offences, and whilst I would not regard the earlier offences as very serious, I do regard the later offences as very serious. The later offences represent a persistence in offending despite frequent leniency on earlier occasions shown by the courts, and many of these offences took place while the applicant was bonded to be of good behaviour (or had otherwise given undertakings).

11. The driving offences are old now for the most part but I would regard unlicensed driving by a person who has never held a licence as very serious because of the potential consequences for community members.  Vehicle accidents, whether they involve other vehicles or pedestrians, can have the most serious and life-altering consequences. It is unacceptable that people who have never held a licence should choose to drive in the community given the potential consequences.  Moreover, I regard the offence of driving with a high-range PCA as very serious although it is now ten years old.

12. I regard the resisting or hindering of police as very serious because of the concern the community has that law-enforcement officers be treated respectfully and non-violently in the execution of their difficult roles, as I do the threatened assaults upon members of the community.

13. All in all, I regard the applicant’s extensive criminal offending as both very extensive and very serious.

14. By subparagraph (c), I must have regard to the sentences that have been imposed. I have done so.  I am not required to have regard to the sentences where the offending involves acts of family violence or violent acts against women. These are to be regarded very seriously irrespective of the sentence, or indeed of the absence of any criminal charge. I bear that in mind. The sentence for the break and enter was a long one (and I refer here to the sentence as modified by the appeal Court). It marked out the seriousness of the applicant’s offending.  Other sentences have been long and marked out the seriousness of the offending.

15. I would also say that there has been very considerable frequency in the offending. This is clear from even a cursory examination of the applicant’s criminal record. I would further note that the record exhibits a trend of increasing seriousness. I say this because there has been persistence in the offending despite the leniency extended to the applicant by the Courts and because much of the offending has occurred while the applicant has been on a bond or otherwise had formal obligations to be of good behaviour. The most recent theft resulting from the break and enter is far more serious than the various dishonesty offences that were engaged in at an earlier stage.  The theft of weapons for profitable sale on the black market is self-evidently reprehensible and represents a most serious escalation in criminal behaviour.

16. I would also note that much of the offending appears to have been driven by the desire to fund the purchase of drugs. This has occurred over a number of years. The applicant was of a mature age, and despite multiple opportunities to engage with responsible rehabilitation services, he has largely failed to address his drug dependence.

17. I must address also the risk to the Australian community.  I bear in mind the principle that appears in subparagraph (1) of paragraph 8.1.2.  The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Soke conduct and harm may be so serious that any risk of repetition may be unacceptable.

18. Under subparagraph (2), I am to assess risk by reference to two matters “cumulatively”; namely, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and, secondly, the likelihood of that occurring taking into account the matters referred to in subparagraphs (i) and (ii).

19. I would regard the nature of the harm caused by any further violence towards women as very serious indeed. Violence of this type is rightly deprecated within the community. Violence within personal relationships substantially harms victims, who are often vulnerable. I would regard the nature of the harm to the Australian community of any further theft of weapons for on-sale to the black market as very serious for the reasons I have earlier explained. I would regard the nature of the harm to the Australian community should the applicant resort to ice as very serious as well. The use of ice has, frequently, unpredictable effects because it is a drug that leads to disinhibition and, indeed, manic behaviour. It is a very serious matter for a person to consume a drug which promotes these side effects because the consequences can be extreme for other community members. Moreover, participation in the drug trade, even as a consumer, is highly anti-social as consumption serves to promote the profitability of an illicit trade that harms an ever-increasing number of Australia’s citizens.  I do not underestimate either the harm to the community of further theft or other antisocial behaviour engaged in by the applicant, including driving whilst unlicensed or while intoxicated, hindering or resisting police, or threatening members of the community. 

20. In quantifying the level of risk, I must have regard to appropriate information and evidence. Here, there may be said to be “cross currents” so to speak.  Obviously enough, the applicant has been given multiple warnings and opportunities to reform, which he has largely squandered.  Moreover, he has entered the jail system on multiple occasions now. His most recent crime was committed very shortly after his release from jail. Jail has not proved a deterrent for the applicant.  I note also the remarks of the sentencing Court, which indicated that the prospects of rehabilitation of the applicant were “guarded” although these must be considered in the light of the appeal Court’s remarks.

21. There are more positive factors, however. First, there is, in my opinion, a very real deterrent offered to the applicant by the prospect of deportation. I accept the applicant’s evidence that he wishes strongly to re-establish contact with his two children, T and K. Ms S has made it clear that she no longer wishes to resume a spousal relationship with the applicant, but she is willing to offer him separate quarters in her house. He will also have a job in the family business.  The prospect has been held out to this applicant of one final opportunity to reintegrate himself into a normal cycle of work, family and leisure, with strong protective factors of stable accommodation and adequately remunerated work. He will know that any repetition of criminal behaviour will see him jailed for an even longer period of time; but, more importantly, it will result in the cancellation of his visa and his re-entry into the immigration-detention system, with only the faintest opportunity of successfully seeking revocation of the cancellation decision. I believe the applicant appreciates this fact. It could scarcely be otherwise since he now stands on the very threshold, so to speak, of deportation and the end of meaningful one-on-one contact with his two children on a daily basis. That is a powerful factor in this applicant’s life.

22. I have also had regard to the report most recently prepared by the clinical psychologist Mr Tsolis: Exhibit A14.  Mr Tsolis also provided oral evidence to the Tribunal. I shall not recapitulate the report in detail.  Mr Tsolis indicated in his evidence that the applicant’s description of his childhood as abusive ‒ verbally, physically, and sexually ‒ was not in his opinion a fabrication. Mr Tsolis described a background where the applicant had suffered very serious abuse. He was also without parents: his father was not an active part of his life while his mother was forced to support him by working in a job that took her away from the home. His childhood was isolated, abusive, and affected by constant racial taunts because he was denigrated for being – and I quote – a “half-caste”.  It would appear that matters improved when he was about 16 and moved away. Mr Tsolis indicated that this abusive childhood, as described in his report, has re-emerged somewhat as a factor in conjunction with the applicant’s loss of his familial role once his relationship with Ms S ended.  The result has been a post-traumatic stress disorder.

23. I must say that I do not agree with the report to the extent that it suggests that excessive drinking followed on from the breakdown in the relationship with Ms S: rather, it was excessive drinking that led to the breakdown in the relationship. But I accept the consumption of illicit drugs, at least on a more substantial basis, occurred around the time of the breakdown of the relationship.  I accept Mr Tsolis’ conclusion that the illicit substance misuse, at least when it began on a substantial scale, was connected with the breakdown of his marriage to Ms S, and the exacerbation of his post-traumatic stress symptomatology.  This created a vicious cycle, which was only broken by a custodial sentence.  So far as the abuse is concerned, I do note the answer given by the applicant that he felt that his earlier childhood experiences had little to do with his offending. I note that Mr Tsolis indicates in his report that the applicant was prone to under-reporting the severity and extent of the psychological impacts of the events that were discussed in the assessment.  Moreover, I rather suspect that the applicant would seek to minimise the impact of the earlier abusive events because they may still form a basis of self-shame within himself.  I note further that Mr Tsolis’ report indicates that the applicant has plans to re-engage with his church and establish new social relationships. 

24. There is a further suggestion in the report that the applicant is gullible and easily led and that this in no small way contributed to his offending.  Here, I do not agree with the assessment.  It seems to me that the applicant committed offences at quite a mature age and that his willingness to re-engage in offending behaviour had more to do with an urgent need to fund his drug habit. I do not believe that his offending was a result of gullibility.

25. On the evidence before me, I accept Mr Tsolis’ conclusion that the applicant has now largely desisted from alcohol and drugs for some two and a half years, and so his physical dependence is now in remission.  That is, of course, only one aspect of the matter, however, as drug dependence presents as a complex psychological phenomenon as well.  There is no formal assessment of risk given by Mr Tsolis, but it seems implicit that he believes the applicant will have good protective factors available to him in terms of his reconnection with his family and the resumption of paid work.  As I have said, the applicant does wish to re-establish a close connection with his children and this is being offered by his former wife.

26. It is not clear to me, however, that Ms S appreciates at the present time the absolute need for the applicant to stay away from all alcohol whatsoever. Her evidence in this regard was perhaps surprising. I have concluded that her insight was perhaps rather limited given especially that she had been the victim of family violence connected with alcohol-derived disinhibition.  It will not be safe for the applicant to resume a moderate drinking habit. He will have to give up alcohol altogether if he is to avoid a situation where alcohol becomes a cause of poor behaviour, and arguments and violence ensue.  Alcohol use will most probably lead the applicant to violence, exclusion from his home, and drug misuse. Eventually a life of crime will result.

27. But I note that Ms S is willing to fund and encourage the applicant’s engagement with rehabilitation services. And I note here that her interest is wider than a concern for her ex-partner’s welfare. She is particularly concerned that her son K needs the applicant’s support to keep him away from the criminal justice system. She is struggling to manage to keep K on an even track.  I accept this evidence.

28. I note that have also considered the reports of Mr Awit dated 19 May 2021 and 26 July 2021: see Exhibit R1, pp 136ff.  I agree with the conclusion that in order to reduce the applicant’s risk of recidivism, ongoing psychological intervention is clearly required (see Exhibit R1, at p 143).           

29. My overall conclusion in respect of the question of risk is that there are strong incentives for the applicant to stay away from alcohol and drugs, a strong protective environment for the applicant to be made available to him immediately should he be released into the Australian community, and very strong deterrents. I believe that accommodation with Ms S and the children will be a significant fillip for the applicant and his sense of wellbeing. I accept that there is no time limit as such specified by Ms S for the applicant to remain in the house, but he would have to leave at a certain point and resume a life in his own separately rented or purchased accommodation: this would be a potential future stress point. In my opinion, if the applicant can stay away from alcohol and drugs for a considerable period of time, then the risk of his reoffending will be low. Again, if the applicant can maintain, when living on his own, the discipline of not taking alcohol or drugs, the risk will be low. 

1. But the first weeks and months out of detention, and the weeks when he ceases having daily contact with his children as part of a family, will be critical points. On the information before me, I do not believe that it is possible accurately to assess the level of risk; but overall it would be wrong to fail to give appropriate weight to the applicant’s poor history.  There is a real and substantial risk of recidivism at the present time, given the applicant’s quite serious issues and his past failure to refrain from drugs.  But it would not be right, in my opinion, to say that the risk level is the same as it was. I think the situation has changed for the better after the applicant’s most recent experiences of jail and immigration detention.   

2. I remind myself that this real and substantial risk is a matter to be considered “cumulatively” with the nature of the harm.

3. I must consider the family violence committed by the applicant. I acknowledge expressly what appears in subparagraph (1) of paragraph 8.2 without recapitulating it. I acknowledge that there are many instances of family violence that have marred the applicant’s relationships, not only with Ms S but also with his other partners here in Australia. There has been a considerable frequency in the offending in this regard: see subparagraph (3)(a).  I accept that the applicant has largely accepted that he has committed family violence in the past.  I remain less convinced that the applicant accepts responsibility (cf subparagraph (3)(c)(i)) for the violence in the sense of condemning it and understanding that it is not excused in any circumstances. I do not believe that the applicant has an understanding of the impact of abuse upon the victim and witnesses of the abuse, particularly children (cf subparagraph (3)(c)(ii)).  There have been some efforts made by him (i.e., completing anger-management courses and an EQUIPS program) to address the factors which contributed to the conduct (cf subparagraph (3)(c)(iii)). I do believe that the applicant, with his positive decisions to engage with psychological help, is making something of an effort to address the factors which led to his alcohol and drug misuse. Drug and alcohol misuse was the immediate precursor to violence and it is essential that the applicant stay away from any alcohol or drugs. There has been some understanding and development of insight in this regard. I must also take account of formal warnings about the future consequences of violence. I have no doubt that the police warned the applicant on multiple occasions about the need to desist from violent behaviour, and, of course, the 2010 episode, amongst others, involving the assault upon Ms S, his then wife, resulted in a finding of guilt. The multiple court proceedings in which he has been engaged could have left him in no doubt about the consequences for him should he resume violence.

4. I must have regard to the best interests of minor children in Australia. I accept that the interests of T and K favour the revocation of the cancellation decision, although I also take into account the adverse risk they would face if the applicant reverted to alcohol or drug misuse. I bear in mind that T was involved in the struggle when Ms S was assaulted in 2010.  That said, I accept the statements in relation to K that appear in Ms S’s statutory declaration: Exhibit R1, pp 154ff. They are concerning. K was involved, at the age of 12, in criminal behaviour due to poor association with adverse peers. He has extremely elevated levels of anxiety, depression, and anger according to a psychologist who saw him.  He is clearly troubled by the prospect of the applicant’s deportation; and it is of real concern, although perhaps not altogether surprising, that K has had self-harming thoughts. 

5. I have weighed Ms S’s evidence carefully.  She is financially independent.  She has little reason to want the applicant back within her family circle given the violence to which she has been subjected and which I have found occurred on more than one occasion. Indeed, if things were going well with her two children, she might well be indifferent to the applicant’s future.   All in all, I do believe that she has very genuine concerns about her children’s welfare and the need to reintegrate the applicant into their lives for the children’s benefit.  I add that I accept that the applicant has maintained ongoing contact with these two children to the extent that has been practicable.

6. I accept further Ms S’s evidence that Mr S, her father, is a good grandfather to the children but does not fulfil a father’s role as such. Nevertheless, he is there as a good male role model in the family, and I must take that into account.

7. There are other children in Australia that the applicant has had with his other partners. I accept that their interests also favour the revocation of the cancellation decision. I say this because I believe the applicant’s evidence that he is genuinely committed to providing for them financially and that he will be in a far better position to do that from Australia than from the relatively poorly paid workplace environment he would re-enter if he were deported to Fiji.  That seems to me to be a matter of common sense. So far as one-on-one contact is concerned, I am satisfied that there has not been any effective engagement with these children for a long while now, and that the applicant’s chances of re-engagement are quite uncertain at the present time.  Nevertheless, there is a financial interest that the children have in being supported adequately by parents, and that is a factor to take into account in the applicant’s favour.   

8. Overall, I regard the interests of minor children in Australia as a factor that weighs substantially in the applicant’s favour.

9. I must consider the expectations of the Australian community. These are set out in paragraph 8.4 and I note that I am not to assess them for myself: see subparagraph (4). They also apply regardless of whether the non-citizen poses a measurable risk of causing physical harm in the Australian community: see subparagraph (3). I acknowledge what appears at subparagraph (1) of paragraph 8.4. I acknowledge also that acts of family violence are specifically mentioned in subparagraph (a) of subparagraph (2) as matters that give rise to very serious character concerns.  That is an important matter.

10. All in all, the community-expectations consideration counts very substantially against the applicant.  There is no doubt about that.

11. I must have regard to “other” considerations under paragraph 9.  There is a non-exhaustive list of four considerations. Non-refoulement obligations do not arise in this case.

12. I do think there are impediments on removal that I must consider. These impediments do not include the generally less favourable economic conditions prevalent in Fiji.  I say this because I am to have regard to the general standard of living amongst the Fijian population without a comparison with Australian circumstances: see paragraph 9.2(1). 

13. The impediments do legitimately include, however, the particular disadvantages that an applicant will face and that are personal to him. Although he will not be forced to re-engage with abusive family members, I accept that returning to Fiji may cause the applicant some difficulties in respect of his past experiences. I believe that he will face a particular impediment in that he will be wrenched, so to speak, from Australia where he has the prospect of re-engaging with two children (through Ms S) and then having to attempt to stay away from alcohol and drugs without the same level of support as he would have in Australia and without necessarily the same level of psychological support he would have in Australia.  This is referred to in Mr Tsolis’ report: Exhibit A14, p 8.  I do think the applicant has had a clear propensity to use drugs at difficult stages of his life.  I have referred earlier in my reasons to critical points, and I believe that removal to Fiji would be a critical adverse point so far as the applicant’s further relapse into alcohol or drug misuse is concerned.  If I affirm the decision under review, the applicant will face this quite serious impediment on removal that goes beyond simply a measure of personal sadness or even distress.

14. I count the “impact on victims” consideration as a neutral factor.

15. I must consider links to the Australian community. I accept that the applicant committed his first offence fairly shortly after arriving in Australia.  I take that into account.  I do take into account the desirability of the applicant staying in Australia so far as Ms S’s own interests are concerned.  She has a legitimate interest in sharing the emotional responsibility of raising their two children. That is a matter I believe I ought to take into account.

16. I must take into account as well the applicant’s own interests in maintaining a meaningful life in Australia, although I must be careful not to double-count it to the extent that it has figured under “impediments on removal”. I do believe that he has, in his own mind, a commitment to his children, even though the commitment has been warped and frustrated by a drug dependence that spiralled out of control, as it does for so many other ice-users. He will lose much if he returns to Fiji. I accept that Ms S is in a position to take the children to Fiji during holidays, and therefore it is unlikely that there will be a complete break in contact.  But it is one thing to have daily or very frequent contact and involvement in a child’s life and progression: it is a very different thing to have merely intermittent contact, even if it is regular.

    WEIGHING THE CONSIDERATIONS

17. Weighing the considerations in this case has been extremely difficult as it frequently is in these cases. I acknowledge the new emphasis on family violence that differentiates Direction no. 90 from its predecessor, Direction no. 79. I acknowledge also the very frequent offending of the applicant. The break and enter which saw three very powerful weapons stolen and not recovered because the applicant did not co-operate with police is of very great concern.  It was of real concern to me as well that the applicant initially failed in his evidence to me to acknowledge the intention to sell the guns on the black market.  There is no doubt that the community-expectations consideration counts substantially against the applicant.

18. On the other hand, I do find that the interests of all the applicant’s children in Australia, which vary from financial support in the case of some children to one-on-one fatherly support in the case of two others, are particularly important. Drugs and alcohol often bring dysfunction in their wake.  Violence and crime are very frequently associated with their misuse.   Children tend to be victims of this dysfunction, and they are especially hard hit by it. Too young to rationalise what is happening, they very frequently bear the full psychological impact of a parent’s poor choices.  I am particularly concerned by the circumstances of the children so far as they have been related to me in evidence. Their interests seem to me to be a particularly important consideration. I take into account my finding that the risk factor associated with the applicant will depend upon what happens at critical points; namely, whether he can stay away completely from alcohol and drugs for a considerable period so that absolute sobriety becomes an unthinking reflex for him, and secondly, whether he can withstand what will be the very difficult task of having to leave Ms S’s premises in due course. The risk of relapse is real, and there is no doubt there have been multiple occasions when the applicant has betrayed the leniency and trust extended to him by the Australian community through the judicial system.

19. But there are cautious grounds for some optimism in respect of the risk profile and I have canvassed these earlier in my reasons. I do believe that the applicant can make an effective contribution to the welfare of his children if he maintains absolute sobriety.

20. I must consider Ms S’s interests as well. She has struggled ‒ not financially but in other ways ‒ as a single parent and her interests do count in my opinion especially as she is willing herself to facilitate the rehabilitation of the applicant by allowing him into her home and supporting him in his engagement with the psychological treatment that will be necessary for him.

    FORMAL DECISION

21. All in all, having given this matter very careful consideration and acknowledging that my thinking has fluctuated, I have decided that, on balance, the weighing of the considerations under Direction 90 does favour revocation of the cancellation decision. Having undertaken the weighing exercise and reached this conclusion, I return now to the language of section 501CA(4)(b)(ii) of the Act.  I have concluded that there is “another reason” for the cancellation decision to be revoked. Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation decision be revoked.

    ……………[sgnd]..……………….

    Associate

    Dated: 4 January 2023

Dates of hearing:	23 & 24 November 2022
Advocate for the Applicant:	I Ehimudiamen Lucky Iyare & Associates
Advocate for the Respondent:	K Pieri Minter Ellison