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

Tuaoi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 922 (22 April 2020)
Division:GENERAL DIVISION
File Number:2020/0563
Re:Setu Tuaoi
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:22 April 2020
Place:Brisbane

The decision under review is affirmed.

...............................[SGD].........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
22 April 2020
THE ISSUE BEFORE THE TRIBUNAL

Mr Setu Tuaoi (“the Applicant”) is a 38 year old citizen of New Zealand.[1] He relocated to Australia on a permanent basis, at the age of 31 on 12 February 2013.[2] The most recent visa granted to him was a Class TY Sub-class 444 Special Category (Temporary) Visa (“visa”) on 27 January 2016.[3]
[1]     Exhibit G1, s 501 G-Documents, G-11, page 71.
[2]      Exhibit G1, s 501 G-Documents, G-18, page 110.
[3]     Ibid.
On 14 November 2017, the Applicant was convicted of possessing dangerous drugs (schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4) and sentenced to 2 years imprisonment with immediate parole. He was also convicted of possessing dangerous drugs (schedule 2) and drug related paraphernalia for which he was not further punished.
This led to a decision on 27 April 2018, by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) to mandatorily cancel his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test.[4] On 15 May 2018 the Applicant requested a revocation of the decision,[5] and on 28 January 2019, pursuant to s 501CA(4) of the Act, the Respondent decided not to revoke its decision.[6]
[4]     Exhibit G1, s 501 G-Documents, G-3.
[5]      Exhibit G1, s 501 G-Documents, G-4; and G-11 to G-13.
[6]     Exhibit G1, s 501 G-Documents, G-6.
The Applicant lodged an application with this Tribunal on 3 February 2020 seeking a review of the Respondent’s decision (“the decision under review”)[7] pursuant to s 500(1)(ba) of the Act.
[7] Exhibit G1, s 501 G-Documents, G-1.
EVIDENCE
The hearing of this application proceeded on 3 April 2020 and the Tribunal received oral evidence from the self-represented Applicant. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “A”. The Tribunal did not have regard to the contents of an email sent by the Applicant on 2 April 2020 because it was not lodged two clear business days before the hearing.[8] However, most of the information in the email was already in the Tribunal materials, save for some information about rehabilitation courses that the Applicant had engaged in, and this information was elicited by the Respondent in the course of cross-examining the Applicant.
[8] Sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth).
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant and his wife have been together for 19 years.[9] In 2013 they and their two children permanently relocated from New Zealand to Australia.[10] Later that year they had a third child.[11] The Applicant was raised in the church, and when he visits family in Melbourne he plays in the church band.[12]
[9]     Exhibit G1, s 501 G-Documents, G-12, page 76.
[10]    Exhibit G1, s 501 G-Documents, G-18, page 109; G-12, page 77.
[11]    Exhibit G1, s 501 G-Documents, G-12, page 77.
[12]    Exhibit G1, s 501 G-Documents, G-12, page 79.
The Applicant worked for around two and a half years, loading trucks and lifting crates of bread. He said that when his wife was about to have their fourth child (born in January 2016)[13] he suffered a workplace injury.[14] He was given worker’s compensation for three months but his employer would not give him any further employment.[15] He tried to find other employment but was unsuccessful,[16] and he could not get benefits.[17]
[13]    Exhibit G1, s 501 G-Documents, G-12, page 77.
[14]    Transcript, page 8, lines 39 to 43; page 17, lines 36 to 40; page 33, lines 25 to 30; page 34, lines 10 to 15.
[15]    Transcript, page 18, lines 13 to 15.
[16]    Transcript, page 41, lines 31 to 33
[17]    Transcript, page 8, lines 42 to 45.
With his wife pregnant and no money coming in, a friend suggested that he could make money selling methamphetamine.[18] The Applicant explained that he had met a friend of his older brother who had introduced him to “all these people”.[19] When the Applicant was asked if this person sold methamphetamine to him to sell to others, he said the person gave it to him.[20] The Applicant was asked if he had to give this person a cut of the proceeds and he said he did not. He said the person gave him methamphetamine because “Well, he had heaps of it” and “He was surrounded by a lot of people that had heaps of it. That, to him, was nothing but he’s gone. He’s been gone.”[21]
[18]    Transcript, page 9, lines 1 to 5.
[19]    Transcript, page 45, lines 8 to 10.
[20]    Transcript, page 45, lines 25 to 35.
[21]    Transcript, page 46, lines 8 to 16.
The Applicant said that he became depressed having previously been the family’s main provider,[22] and he started using cannabis on weekends.[23] He was able to obtain cannabis by swapping methamphetamine (given to him by his new friends) for it.[24]
[22]    Exhibit G1, s 501 G-Documents, G-14, page 88; transcript, page 35, lines 7 to 10.
[23]    Transcript, page 34 lines 34 to 35; page 35, lines 5 to 11.
[24]    Transcript, page 36, lines 36 to 42.
When the painkillers the Applicant was taking for his workplace injury stopped having an effect - sometimes he would take an entire two week’s supply in two days – he increased his marijuana use.[25]
[25] Transcript, page 9, lines 23 to 25; page 32, lines 7 to 8.
The Applicant’s first recorded offending episode was on 13 March 2016. Police intercepted him driving and searched his car. The prosecution’s Schedule of Facts stated that, as they searched, the Applicant frantically pressed buttons on his mobile phone. Police took the phone and continued their search. The police located, clenched between the Applicant’s legs, a plastic container containing crystal methamphetamine in clip seal bags as follows:
·3.459 grams ;
·2.303 grams;
·3.472 grams;
·four clip seal bags containing 0.054 grams, 0.059 grams, 0.063 grams and 0.066 grams, respectively.[26]
[26] Exhibit R1, Tender Bundle, TB2, page 32.
The total weight was 9.476 grams, with a pure weight of 7.219 grams. Police also found a total of 4 grams of cannabis divided between four clip seal bags.[27]
[27] Ibid.
In a bag that was hidden in a compartment in the floor, the police found (among other things): two sets of digital scales, a set of calibration weights, a large bundle of clip seal bags, three smaller bundles of clip seal bags, a lockable safe disguised as a book, and $7010 in cash.[28]
[28] Ibid, page 33.
The Applicant provided the pass-code for his mobile phone after five failed attempts. The police suspected that when he had been frantically pressing buttons on the phone he had deleted its contents, and they found a program on the phone that is used to erase data. However, in the notes section of the phone were a number of lists and references to drugs, drug amounts, amounts of money and money owed.[29]
[29] Ibid.
The Applicant was charged with offences relating to his possession of the methamphetamine, possession of the cannabis, and possession of some of the drug-related items (as referenced in the above paragraphs of this Decision).
The Applicant’s evidence to the Tribunal was that, at that time he was not using methamphetamine. When he sold methamphetamine, it was for financial gain, not to feed an addiction.[30] He switched from consuming cannabis to methamphetamine around a year and a half later.[31]
[30] Transcript, page 9, lines 26 to 30.
[31] Transcript, page 32, lines 43 to 45; page 36, lines 17 to 21.
On 18 March 2016 the Applicant failed to report in accordance with his bail conditions.[32]
[32] Exhibit G1, s 501 G-Documents, G-7, page 51.
On 16 May 2017 the Applicant and his wife purchased a home.[33] The Applicant was unemployed at this time.[34]
[33] Exhibit G1, s 501 G-Documents, G-15, pages 96 and 97.
[34] Exhibit G1, s 501 G-Documents, G-12, page 81.
On 27 May 2017, while still on bail, the Applicant was found by the police in a hotel room. The registered occupants of the room where the Applicant and woman. Police found, among other things, multiple clip seal bags containing quantities of crystal methamphetamine, a large quantity of clip seal bags, digital scales, a glass pipe, a quantity of cannabis, a mobile phone, and some uncapped needles inside a bag. The Applicant told police that all of the items were his.[35] However, he denied that the items were his when giving evidence to the Tribunal. He said:
“Well, none of it belonged to me, they were all hers. I was under her charm when that happened.”[36]
[35] Exhibit R1, Tender Bundle, TB1, page 7.
[36] Transcript, page 24, lines 27 to 30.
However, he conceded that he pleaded guilty to possessing drugs in relation to that incident.[37] He also conceded that by the time of this incident he was using methamphetamine.[38]
[37] Ibid, lines 31 and 32.
[38] Transcript, page 35, lines 40 to 42.
On 19 July 2007 the Applicant again breached his bail conditions by failing to appear as required.[39]
[39] Exhibit G1, s 501 G-Documents, G-7, page 51.
On 7 September 2017, the Applicant was found in possession of stolen property, being new brand-name men’s and ladies’ watches and three brand-name handbags with the price-tags and wrapping still attached. He told police at the time that the watches were fake and he had purchased them on Gumtree through an unnamed friend whose address he did not know. He also said the bags were given to him by an unnamed friend.[40] He was subsequently convicted of unlawful possession of suspected stolen property.[41] The Applicant told the Tribunal that the bags were payment for some “rock” that he had supplied.[42]
[40]    Exhibit R1, Tender Bundle, TB1, page 11.
[41]    Exhibit G1, s 501 G-Documents, G-7, page 50.
[42]    Transcript, page 47, lines 8 to 23.
On 2 October 2017 the Applicant again breached his bail conditions.[43] In the hearing the Applicant gave evidence that on one occasion he failed to report because it was a public holiday.[44] This is true – 2 October 2017 was a public holiday in Queensland.[45]
[43]    Exhibit G1, s 501 G-Documents, G-7, page 50.
[44]    Transcript, page 22, lines 14 to 16.
[45]    The Queen's Birthday holiday.
On 7 November 2017, while still on bail, he was caught in possession of “a point” of methamphetamine.[46]
[46] Exhibit R1, Tender Bundle, TB1, page 15.
On 14 November 2017 the Applicant was convicted in relation to the drugs and other items that were found in his car in March 2016. He was sentenced to two years imprisonment with immediate parole. The learned sentencing Judge had this to say:
“It is admitted that you were in possession for a commercial purpose. I think that is clear from the packaging and also from the contents of your phone. Probably more would have been clear from the contents of your phone, but while police were searching your car, you deleted as much of it as you could.
…
You are entitled to credit for an early plea. You have a generally stable life. You have a long-term, stable marriage. You have four children in that marriage. And you have a good work history.
…
Mr Tuaoi, you say that you came from New Zealand to find a better life. If you want a better life, you want to stay away from drugs, and you want to stay away from drugs because you are the role model for your children, and you do not want them standing where you are now, do you? It is really simple...”[47]
[47] Exhibit G1, s 501 G-Documents, G-8, page 54.
The Applicant contended that he stopped using drugs on the day that he was sentenced and had not used them since.[48] In his words:
“I have been off drugs since November 2017. I really wanted to change my life for myself, my wife and kids. I often asked my parole officer to drug test me when I went to sign in as I was proud of myself and to me that was a huge accomplishment of being drug free. To this very day I am still drug free from 2 years of using.”[49]
[48] Transcript, page 36, lines 10 to 16.
[49] Exhibit G1, s 501 G-Documents, G-14, page 86.
A month later, the Applicant committed a home invasion while armed and in company. The home was occupied by a male, a pregnant female (“the victim”), their two small children, a friend and her child, and another friend, none of whom knew the Applicant or his accomplice. Around 11:21pm there was a loud banging on the front door. The Applicant and his accomplice yelled through the door demanding to be let in, looking for a particular person. The victim told them that the person did not live there and to leave. In fact the person was present and he hid in a bedroom.[50]
[50] Exhibit R1, Tender Bundle, TB1, page 19.
The prosecution Statement of Facts for court states that the Applicant used a crowbar to break through the door, and said “I am going to kill that cunt”. The victim asked him to leave as there were children in the house who would be scared, however, the Applicant walked up the hallway in the direction of the bedrooms. The victim stood in the hallway to try to stop him, he grabbed her by her shirt straps, pushed her up against the wall and pushed the crowbar against her chest. He said “If you don’t shut the fuck up, I’m going to get you too”. The Applicant’s accomplice entered the house and walked up the hallway. The victim said she was pregnant and told them both to leave. She then closed and locked her bedroom door. The Applicant kicked and hit the bedroom door, trying to open it and causing it to crack. One of the victim’s children woke up crying. The victim again told the Applicant and his accomplice to leave. She then called out to another occupant of the house to call the police. The Applicant and his accomplice left and, on his way out, the Applicant said “It does not matter, I will be back later and I will smash and take whatever the fuck I want”.[51]
[51] Exhibit R1, Tender Bundle, TB1, page 19; TB2, page 36.
The incident resulted in the Applicant being returned to custody on 21 January 2018. His parole was subsequently suspended indefinitely, meaning he was required to serve the rest of his sentence of imprisonment in custody.[52] He has been in prison or immigration detention ever since.
[52] Exhibit G1, s 501 G-Documents, G-3, page 23; Exhibit R1, Tender Bundle, TB3, page 51.
Six weeks later, while in custody, the Applicant arranged for an associate to intimidate the victim of the home invasion into withdrawing her complaint. On 10 March 2018 an unknown man came to her door and yelled at her:
“I know that you pressed charges, and if you don’t drop the charges, I’m going to come back the same as the first time, I will hurt your boyfriend, you and your kids.”[53]
[53] Exhibit R1, Tender Bundle, TB2, page 37.
The victim told him repeatedly to leave and that she would call the police. He responded “I’ll be watching you, you snitching dogs.”[54]
[54] Ibid.
The police then reviewed the phone calls made by the Applicant in custody and discovered that he had made a phone call four days earlier in which he had told an associate to go to the victim’s house, and convince her that she had the wrong person and to say that to the police. He told this person to “make her scared or whatever”. The associate agreed to do it.[55]
[55] Ibid.
In May 2019, the Applicant was convicted of offences arising from the home invasion and the subsequent threat.[56] The learned sentencing Judge said this to the Applicant when passing sentence:
“You were dealt with in the Brisbane Supreme Court on the 14^th of November 2017 for drug offences, and received two years imprisonment with an immediate parole release date. As it turns out, the present offending was committed within one month of that parole date, which is an aggravating feature.
Also, I note the breach of bail condition occurred the day before this.
…
You are a mature person with a criminal history. There was premeditation here. The Complainant was assaulted in her own home. Luckily she was not injured. It was persistent. The pervert the course of justice charge aggravates the situation. Home invasions are serious…”[57]
[56] Exhibit G1, s 501 G-Documents, G-7, page 50.
[57] Exhibit G1, s 501 G-Documents, G-9, pages 56 to 57.
The Applicant was sentenced to two years imprisonment for the home invasion, with immediate parole. For attempting to pervert the course of justice he was sentenced to a concurrent prison sentence of 12 months. For the assault that he committed during the home invasion he was sentenced to a concurrent term of imprisonment of two months. He was sentenced to a smaller period of imprisonment in relation to wilful damage committed during the home invasion.[58]
[58] Exhibit G1, s 501 G-Documents, G-7, pages 49 and 50.
While the Applicant was incarcerated, he did not resume taking his medication for his workplace injury on advice from his wife who thought that doing so would lead him back to drug use.[59]
[59] Transcript, page 13, lines 7 to 13.
While the Applicant was incarcerated he preferred to work than do courses because by working he earned money that he could use to telephone his family.[60] He worked in the sewing shop, making uniforms for the gaols and other items. He became very good at it and if he is released into the wider community he expressed his wish to gain employment using his sewing skills. He did a TAFE course while incarcerated and as a result he has a certificate for Fashion and Design.[61] According to a document from Corrective Services entitled “EMPLOYMENT STATEMENT” that the Applicant had an excellent record of attendance in the textile workshop, he could work with minimal supervision, and he regularly did double shifts to meet deadlines.[62]
[60]    Transcript, page 12, lines 22 to 26.
[61]    Ibid, lines 30 to 36.
[62]    Exhibit G1, s 501 G-Documents, G-14, pages 94 to 95.
In March 2018, the Applicant was involved in a confrontation with a prison guard in which he took an aggressive stance, his chest came into contact with the guards chest, and he refused multiple times to comply with a direction.[63] The Applicant gave evidence that he behaved in that way because the prison had been locked down for 20 hours and he thought he was going to miss his four hour break and go straight into another 20 hour lockdown because he had been in the bathroom at change over time.[64]
[63] Exhibit R1, Tender Bundle, TB3, page 45.
[64] Transcript, page 30, lines 7 to 18.

In June 2018, one of the Applicant’s regular visitors was intercepted carrying 19 strips of suboxone in a package concealed in her clothing. The Corrective Services report of this incident states that monitoring of the prison telephone system revealed the Applicant and the visitor to have been “involved in the organisation of the package”.[65] In the hearing, the Applicant denied having asked this visitor or anyone to bring the drugs to the gaol.[66] I consider the contemporaneous prison records to be more reliable than the Applicant’s self-serving evidence. Accordingly, I find that the Applicant was involved in this person bringing drugs to the prison. The Applicant gave evidence in the hearing that suboxone is “...pretty much currency in gaol…All the junkies use it in gaol”.[67] As the Applicant identified a use for the suboxone other than personal consumption - being using it as currency - I am satisfied that he did not necessarily intend to consume it himself.
[65]    Exhibit R1, Tender Bundle, TB3, page 43.
[66]    Transcript, page 29, lines 7 to 11, and lines 20 to 24.
[67]    Ibid, lines 3 to 6.
In July 2018 the Applicant was involved in a fight with another prisoner in which he sustained some injuries.[68] The Applicant explained that the fight occurred because he refused to pass messages between prisoners. He said:
“…I was one of the only guys in that unit that actually worked, and in gaol they want you to pass messages on…pass it on to other people that will pass it on to someone in their unit, and I refused to come into it”.[69]
[68] Exhibit R1, Tender Bundle, TB3, page 48.
[69] Transcript, page 30, lines 38 to 44.
I accept the Applicant’s explanation. This incident does not go against him.
I note that the Applicant was convicted of offensive behaviour – public urination - in New Zealand in 2001. This was a very minor offence for which he was not punished. The Applicant did not re-offend in the next 12 years.
The Applicant’s wife and his three younger children live together.[70] The Applicant’s wife works full-time as a recruitment agent.[71] In his Personal Circumstances Form the Applicant said his youngest child stays with his wife’s parents when she is at work.[72] In evidence, he said his wife’s sister and brother-in-law help her with the children.[73] The Applicant describes her as a wonderful mother[74]. Before the social restrictions due to COVID19 began, the Applicant’s wife and children were visiting him on a weekly basis. They are now unable to do so but they communicate via FaceTime every day.[75]
[70]    Transcript, page 19, lines 10 to 15.
[71]    Exhibit G1, s 501 G-Documents, G-17, page 101.
[72]    Exhibit G1, s 501 G-Documents, G-12, page 78.
[73]    Transcript, page 19, lines 20 to 25.
[74]    Ibid, lines 27 to 28.
[75]    Ibid, lines 30 to 43.
The Applicant’s parents live in Samoa.[76] His has a brother, and five cousins with whom he is very close, who live in Australia, and a sister who lives in New Zealand.[77] He also has two stepbrothers and a stepsister living in New Zealand.[78]
[76]    Transcript, page 16, lines 1 to 10.
[77]    Exhibit G1, s 501 G-Documents, G-12, page 79; transcript page 15, lines 10 to 37.
[78]    Transcript, page 16, lines 17 to 33.
The Applicant’s wife provided an undated letter of support that includes the following words:
“I met Setu when I was 19 years of age 2001 and we got married 7 may [sic] 2012.
We have 4 children [name redacted] 17, [name redacted] 12, [name redacted] 6 and [name redacted] 3, they miss their dad daily
Financially this year has been tough, I work full time in recruitment and can work long hours some days. My parents are helping look after my kids while I work. Paying the mortgage and all the bills alone has been stressful.
Setu is a loving father and a man of Faith, he was very proud of being the provider of our family. When he lost his job due to a back injury, he made a lot of bad decisions that he fully regrets and wishes to amend by helping youth to not make the same choices he did when losing hope in inner self
Setu returned to church on December and has been drug free since November. If given the opportunity to prove himself when he returns home, he will be a law abiding citizen.
Please consider our children when making your decision with his visa… [79]
[79] Exhibit G1, s 501 G-Documents, G-17, page 101.
I have before me letters of support from several other people who say they have known the Applicant for many years, and who generally describe him as a loving husband and dedicated father who will be a law abiding citizen if he is returned to the community.[80]
[80] Ibid, pages 101 to 108.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[81]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[82]
[81] [2018] FCAFC 151.
[82] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[83] I will address each of these grounds in turn.
[83] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to a term of imprisonment of two years. What matters in this context is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[84] The Applicant, therefore, has a “substantial criminal record” and does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[84] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[85]
[85] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[86] and “Other considerations”.[87] The Primary Considerations are set out in paragraph 13(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[86] Paragraph 13 of the Direction.
[87] Paragraph 14 of the Direction.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[88]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[89]
[88] [2018] FCA 594.
[89] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision‑maker’s application of the primary considerations and other considerations are summarised as follows:
(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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)…
(i)…
Factor (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature are viewed very seriously. Factor (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant broke into a family home where women and children were present. He broke the front door. He threatened a female, pushed her against a wall and pushed a crowbar against her chest. He proceeded towards an area of the home where her children were sleeping despite her efforts to stop him, and despite her telling him he would frighten her children. One child woke up crying. The Applicant tried to kick in a bedroom door. The victim told him she was pregnant and that did not deter him. As he left the home he made another threat. He subsequently arranged from prison for an associate to threaten to harm her and her family.
The Applicant has a wife and children of his own. He said he is, and has always been, devoted to them. These claims are supported by the people who have written letters of support. Yet the Applicant was prepared to break into another family’s home, to threaten and assault a woman, and to remain in the home making threats and damaging property after being told there were children in the home who would be frightened. He left only when his victim asked another occupant to call the police.
While I have referred to one “victim” there were three adult females and three children in the home at the time.
Breaking into a person’s home is, in itself, a serious violation. Adding to that, the Applicant brandished a weapon, made threats to harm and kill, and assaulted a female occupant. After spending some six weeks in prison, and having had time to reflect on his behaviour, the Applicant arranged for an associate to further victimise the victim, again in the home she shared with her children, in an effort to escape the lawful consequences of his actions. His conduct was reprehensible and shows a worrying callousness. Accordingly, factors (a) and (b) weigh extremely heavily in favour of non-revocation.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the courts for the Applicant’s crimes. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. In the Applicant’s case, his first offence – possession of methamphetamine for a commercial purpose - was so serious it warranted a substantial custodial sentence, being a two year term of imprisonment. The home invasion that he committed only one month later also attracted a sentence of two years imprisonment, with concurrent sentences of 12 months, two months and 14 days for related offences. Those sentences were ordered to be served cumulatively with (i.e. to start after) the two year sentence of imprisonment that the Applicant was already serving. Clearly both sentencing Judges regarded the offending as very serious.
Taking into account both sentencing episodes, the sentences imposed favour a finding that the Applicant’s offending is, in its totality, very serious.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant does not have a long history of offending. However, not counting the breaches of bail, he engaged in six episodes of offending in less than two years, and the most recent five episodes occurred in a one year period. Those offending episodes involved, essentially:
·     Possession of drugs in March 2016;
·     Possession of drugs and other items in May 2017;
·     Possession of stolen property in September 2017;
·     Possession of a small quantity of methamphetamine in November 2017;
·     A violent home invasion in December 2017; and
·     Attempting to pervert the course of justice in March 2018.
I consider this to be frequent offending.
The first offence committed by the Applicant was very serious, involving a large quantity of methamphetamine for commercial use. That was followed by some less serious offences, involving possession of smaller quantities of drugs and possession of stolen property. Ultimately, the Applicant committed his most serious offence, being the home invasion. Another measure of the seriousness of a person’s offending is the circumstances in which it occurs. The Applicant continued to offend despite police intervention. After being sentenced to two years imprisonment and being given the benefit of immediate parole, the Applicant failed to report as directed and he committed a home invasion. While in gaol he attempted to pervert the course of justice. His offending demonstrates a disregard for the law, the authority of the courts and the safety and well-being of others in the community.

Factor (e) weighs heavily in favour of non-revocation.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending. The Applicant was convicted of possession of methamphetamine and it was accepted by the court that there was a commercial purpose. The evidence the police found in his phone indicates several transactions. On another occasion he was found in possession of small quantities of methamphetamine in several clip seal bags and a quantity of empty clip seal bags and convicted in relation to his possession of those things. He has admitted selling methamphetamine for financial gain. Accordingly, I am satisfied that the Applicant repeatedly supplied methamphetamine to others in the community.
Methamphetamine is a drug of dependence that too often causes physical, psychological and financial harm to those who become addicted to it, and causes consequent anguish to their families. It results in crimes committed against innocent members of the community, either to acquire drugs or as a result of consuming them, including property crime and crimes of violence. In this regard, the Applicant admitted that some of the stolen property he was found with – the brand-name bags – was given to him as payment for drugs.
Ultimately, the circulation of methamphetamine in the community puts pressure on health services and the criminal justice system. The more methamphetamine that is circulated in the community, the greater the harm to the community. The cumulative effect of the Applicant’s dealing of methamphetamine is serious.
The Applicant’s repeated victimisation of the female victim of the home invasion is very serious. Being at home when a stranger brandishing a weapon forces his way inside, and being threatened and manhandled must be a frightening experience, and I infer that the victim did feel frightened when the Applicant did that to her. I further infer that the subsequent visit by the Applicant’s associate was as intimidating as it was intended to be. What is more, threatening to harm a witness to a crime (and their family) unless they retract their evidence is conduct that strikes at the heart of the criminal justice system, a system that exists to protect members of the Australian community from harm.
The cumulative effect of the Applicant’s offending weighs heavily in favour of non‑revocation.
Factor (g) of paragraph 13.1.1(1) of the Direction concerns whether the non-citizen has provided false or misleading information to the department. In his Personal Circumstances Form the Applicant was asked to “List all living parents, step-parents, brothers, sisters, and adult children”. In response to that question, he listed his grandmother, two brothers, and four sisters, all living in Australia.[90] When the Applicant was asked about these individuals under cross-examination he conceded that one of the males he identified as a brother and the four females he identified as his sisters were in fact his cousins. He further admitted that he has a biological sister living in New Zealand who he did not include in the form.
[90] Exhibit G1, s 501 G-Documents, G-12, page 79.
I consider that identifying his cousins as his siblings was misleading, as was omitting to include a sibling. I do not believe that it is a coincidence that the cousins whom the Applicant represented to be siblings all live in Australia and the sibling whom he omitted lives in New Zealand. I am satisfied that the Applicant sought to overstate his familial ties to Australia and understate his familial ties to New Zealand. The Applicant gave evidence that he answered the question the way he did because those cousins are like his immediate family and he had more contact with them than he did with his sister who he texts “every now and then”.[91] However, the question is stated clearly and I am not satisfied that this is an adequate explanation. The Applicant’s conduct is, however, somewhat mitigated by the fact that he told the truth in the hearing. Factor (g) weighs, to a limited extent, in favour of non-revocation.
[91] Transcript, page 43, lines 12 to 23.
I do not consider factors (c), (h) or (i) of paragraph 13.1.1(1) of the Direction to apply to the Applicant’s offending or circumstances, so they do not require consideration.
The application of sub-paragraphs (a), (b), (d), (e), (f) and (g) of paragraph 13.1.1(1) of the Direction, in a holistic manner, weigh heavily against revocation of the decision under review.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that the decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
The nature of harm to individuals or the Australian community if the Applicant resumes supplying methamphetamine, is as I have described above – harm to the health and wellbeing of those who become addicted, consequent anguish to their families, and harm to victims of drug related crimes. This harm is serious.
The nature of harm to individuals or the Australian community if the Applicant commits further home invasions in company and armed is serious and potentially very serious. It is fortunate that the Applicant did not locate the person he was looking for who he threatened to kill. The harm from further offending of this kind includes, at the very least fear, intimidation and damage to property and at worst serious physical and/or psychological injury or even death.
The nature of harm arising from further attempts by the Applicant to intimidate victims of his crimes includes psychological and/or physical injury to victims, and the frustration of the prosecution process.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant contended that he was committed to abstaining from drugs and crime. He said, for instance:
“I never want to come back to prison and have every intention of making sure I share my experiences so I can direct others mentally and spiritually to not go down that path.”[92]
and
“I have been clean since November 2017. I will never go back.”[93]
and
“I have learnt from my mistakes and I will never turn to drugs – Being in Jail has humbled me and taught me life lessons that have changed me for the better – It was my first time in jail and definitely my last.
I am remorseful and embarrassed with my actions when under the influence of drugs.
If given a chance to return to my family - I will not take it for granted. I am willing to abid [sic] to any rules given on probation if given that opportunity - drug test weekly monthly no issue. I just want to help and support my wife and children”[94]
[92]    Exhibit G1, s 501 G-Documents, G-14, page 87.
[93]    Exhibit G1, s 501 G-Documents, G-12, page 80.
[94]    Exhibit G1, s 501 G-Documents, G-2, page 3.
With respect to the home invasion, the Applicant told the Tribunal that he was “…[T]ruly remorseful and beyond sorry…”.[95]
[95] Transcript, page 53, lines 23 to 24.
The Applicant contended that if he is returned to the wider community he intended to live with his wife and children and start his own business using the sewing skills he learned in prison.[96] His wife is a recruitment agent and he indicated that he had every intention of returning to the workforce.[97]
[96] Transcript, page 41 lines 39 to 48.
[97] Exhibit G1, s 501 G-Documents, G-14, page 89.
The Applicant has been in prison or immigration detention continuously since January 2018. He has been separated from his wife and children for over two years. I accept that he never wants to be imprisoned again. I accept that he is remorseful for the home invasion. There is evidence before me that the Applicant was drug tested in July 2018, June 2019 and July 2019 and he passed each test.[98] I accept that he has not used illicit drugs in the highly regulated prison and immigration detention environments. I further accept that the Applicant intends to find gainful employment if he is returned to the wider community and that his wife can assist him with that.
[98] Exhibit G1, s 501 G-Documents, G-19, page 112.
However, I do not accept that the Applicant’s offences were all committed under the influence of drugs as he has stated, and I am, therefore, not satisfied that he has fully come to terms with his offending conduct.
There is no independent, expert evidence with respect to the Applicant’s prospects of abstaining from drugs and refraining from re-offending in an unregulated environment where life might not turn out the way he wants it to. I must, therefore, base my assessment of the future risk of re-offending on the material before me.
Apart from a very minor offence in 2001, the Applicant had not been in trouble with the law until 2016. In one sense this is in his favour because he is not a habitual offender or someone who has lived a criminal lifestyle for many years. However, what is concerning is how quickly and easily he became involved in serious crime. I accept his evidence that his workplace injury led to him using cannabis to deal with depression and physical pain. I accept his evidence that he started selling methamphetamine to make money as he was unemployed but he was not using it at that time. According to his own timeline, he changed from a law-abiding family man to a drug dealer and drug abuser in a matter of months.
Having his family and friends around him did nothing to prevent this sharp decline. The Applicant told the Tribunal that he stopped contact with his normal friends and surrounded himself with “the wrong people”.[99] These were people who, according to him, had so much methamphetamine, they gave him large amounts for free. The Applicant described himself as, at that time, being “under the influence” of drugs and:
“…everything as in taking heavy doses of my medication, painkillers, surrounding myself with bad people - with people which I decided to look at them as friends and - and the lifestyle they were living.”[100]
[99] Transcript, page 10 lines 12 to 22.
[100] Transcript, page 41, lines 5 to 15.
Being charged in March 2016 with a serious drug offence did not stop the Applicant from associating with these people and committing further offences. He was not, at this stage, in the grip of a methamphetamine dependency. He was, however, using cannabis.
By May 2017 the Applicant had replaced cannabis with methamphetamine. That is when he was found by police in a hotel with a woman who was not his wife, in possession of illicit drugs, drug related items and stolen property. Even such a predicament, which appears to have been a low point for the Applicant, did not motivate him to remove himself from that scene or seek rehabilitation.
The Applicant claims that he stopped using drugs the day he was sentenced to imprisonment. I am inclined to accept this, as there is no evidence to the contrary and it is not inherently implausible. Even so, he subsequently committed a home invasion, attempted to pervert the course of justice and (unsuccessfully) arranged for contraband to be smuggled to him in prison. It is evident that his successful rehabilitation not only relies on abstaining from illicit drugs, it relies on him changing his attitude so that he no longer considers crime to be an acceptable solution to his problems.
With respect to his drug issues, the Applicant gave evidence, which I accept, that he is currently undertaking some rehabilitation courses in immigration detention. Those courses are a drug course and an anger management course.[101] The Applicant was asked what he had learned from the drug course so far. His answer indicated that he had engaged with the course and thought about issues that affect him. He said:
“I’ve learned that if you acknowledge your triggers, if you surround yourself with the same people you fall into the same trap and you can’t get back. You learn to talk to more people and open up. You learn to find out the negatives in life and the positives and being around those people and why those people will draw you back in. You learn what your weaknesses are and what your strengths are and what gives you disappointment in lifetime [sic] and what gives you positive thoughts and life - you list out what you have to lose and family is always on top of my list. I’d never want to go back but I never want to lose my family ever again. You figure out what your failures are, what your disappointments are, all the regret you have, and then the positives to be responsible. Take responsibility for your own actions, give yourself motivation, give your strength inside that make you feel empowered. You give yourself a plan, you start a new life and just be active. Be mindful of your thoughts.”[102]
[101] Transcript, page 37, lines 4 to 19.
[102] Transcript, page 40, line 13 to 23.
The Applicant’s voluntary participation in this course is a positive, albeit early, step as is his abstention from illicit drugs while incarcerated. His ability to abstain in the wider community, where he may be exposed to former criminal associates or other triggers has not been tested.
With respect to the Applicant’s attitude to crime as a solution to his problems, he has not shown a great deal of insight into that aspect of his behaviour or even a willingness to take full responsibility for his behaviour. For example, when asked about his attempt to pervert the course of justice, he was initially evasive and then tried to understate his culpability. When he was asked:
“What instructions did you give [name redacted] in relation to what he had to do to the victim?”
he answered:
“I can’t recall that far - that far back”
and he later said:
“On one phone call I said to one of my mates to go and sort it out”.[103]
[103] Transcript, page 26, line 30 to 37.
In fact, he had told his associate to scare the victim.
In June 2018 the Applicant arranged for a friend to bring an illegal drug to him in prison but he denied this when he gave evidence to the Tribunal. If he intended to consume it or trade it, either use would constitute a return to his previous offending: consuming drugs or supplying drugs.
When asked why he would not commit offences if his visa is returned to him, the Applicant said:
“Because I have a wife and kids to support. I’m not going to go back down the same road. I’m not going to trap myself with the same people, the same surroundings. Being away from my family this long is - has changed the way I thought - the way I think.”[104]
[104] Transcript, page 40, lines 38 to 44.
However, this gives me little comfort when, nearly six months into the Applicant’s custodial term, when he had been removed from “the same people” and “the same surroundings” he arranged for an illicit drug to be smuggled to him. There is no evidence before me of a change in his attitude since that incident.
While I accept that the Applicant regrets his offending and does not wish to be separated from his family again, and that he has not used drugs since being incarcerated, his ability and resolve to abstain from drugs and crime has not been tested in an unregulated environment. I am not satisfied that he has fully addressed his substance abuse issues or his attitude towards the law. Nor am I satisfied that being around his family and law abiding friends will be any more effective in terms of keeping him from misusing drugs and committing crime than it was previously. I find that there is a real and substantial risk that the Applicant will re-offend if he is returned to the wider Australian community.
Conclusion: Primary Consideration A
Considering all of the relevant factors in paragraph 13.1.1(1), I find that Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person;
·the extent to which the person is likely to play a positive parental role in relation to the child;
·the likely effect that any separation from the person would have on the child;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·whether there are any other people who fill parental roles with the child; and
·any known wishes of the child.
The Applicant has three minor children who live with his wife. They all lived together as a family until January 2018. Child A is 14 years old, Child B is six years old, and Child C is four years old. The Applicant gave evidence, which I accept because it seems plausible, that prior to his incarceration he would drop his children off at school, pick them up, make their lunches, do the laundry and, because his wife was working full-time, he spent more time with his children than she did. He said he helped with their homework and they used to go to theme parks quite often.[105] The current situation is that Child C stays with the Applicant’s wife’s parents when she is at work[106] and his wife’s sister and her husband also help with the children.[107] I am inclined to accept that this was the arrangement when the Applicant was unemployed and his wife was working full-time.
[105] Transcript, page 11, lines 6 to 15.
[106] Exhibit G1, s 501 G-Documents, G-12, page 78.
[107] Transcript, page 19, lines 24 to 25.
I accept the Applicant’s evidence that he communicates with his wife and children daily using FaceTime.
The Applicant asked the Tribunal:
“To please consider my 4 children whom need me mentally and financially. We have a mortgage. My wife works full time and does overtime work in order to support our children.”[108]
[108] Exhibit G1, s 501 G-Documents, G-2, page 3.
I note that one of the Applicant’s children is no longer a minor and his best interests are not relevant to Primary Consideration B, but any likely impact on him of the decision to cancel the Applicant’s visa is relevant to Primary Consideration C.
The Applicant’s wife did not give evidence in the hearing but she provided a letter of support. In that letter she did not indicate her attitude to moving with the children back to New Zealand if the Applicant is deported, nor did she indicate what impact the Applicant’s deportation was likely to have on their children, although she did ask the Tribunal to consider the children.[109]
[109] Exhibit G1, s 501 G-Documents, G-17, page 101.

The Applicant gave evidence that the issue as to the relocation of the family is unresolved.[110] When asked why it was unresolved he said:
“Because there’s nothing in New Zealand for us. There’s nothing there (indistinct) my wage is so low we could never afford to pay [sic] a house”[111]
[110] Transcript, page 14, lines 1 to 6.
[111] Transcript, page 47, lines 22 to 29.
The Applicant added that he was hoping to build his own home here.[112] When he was asked what would stop his wife and children from relocating to New Zealand if he is deported, he said:
“They won’t go. Like, my kids love it here. My wife’s finally got a really good paying job …”[113]
[112] Ibid, lines 32 to 35.
[113] Ibid, lines 37 to 42.
I find it unusual that the Applicant believed his wife and children would choose to live away from him because of his wife’s job and because the children are happy in Australia. I am not convinced by the Applicant’s evidence. I am not satisfied that his wife and children would not move to New Zealand if he were to be deported. However, I note there is an absence of direct evidence that they would.
I am satisfied that the Applicant lived in the same household as all three minor children, fulfilling a parental role, from their respective births until January 2018. I am satisfied that since January 2018 he had maintained regular telephone or FaceTime contact with them and that since he had been in immigration detention they have had some visits with him. There is no evidence before me that suggests that his criminal activities impacted on the children or that he exposed them to his criminal associates. Accordingly, I am satisfied that he has over-all been a positive influence in their lives. Unless he exposes them to crime or criminal associates, it is likely that he will continue to be a positive influence in the lives. That potential is greater with respect to Child B and Child C as they will be minors for 12 and 14 years, respectively.
If the children continue to be separated from the Applicant they will undoubtedly miss his physical presence in their lives, and the family may be in a worse financial position than if the Applicant was able to live with them and contribute income. There is not any more specific information before me about the likely effect of separation on any of the children. There is no evidence of the wishes of any of the children except the Applicant’s assertion that they would not move to New Zealand because they love it in Australia.
The Applicant’s wife currently fills the primary parental role for the children with help from her parents, her sister and her sister’s husband. There is every indication that she will continue to fulfil the primary parental role. The Applicant described her as a wonderful mother and I accept his assessment.
I am not convinced that the Applicant’s family will not move to New Zealand if he is deported. In the absence of reliable evidence either way I am unable to make a finding about that, so I will give the Applicant the benefit of the doubt and proceed on that basis. However, if they do not, he will have electronic and digital means to communicate with the children as he does now.
If the Applicant’s wife and minor children stay in Australia, the best interests of Child A, Child B and Child C weigh moderately in favour of revocation of the reviewable decision.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[114]
[114] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in
[115] [2019] FCAFC 185.
FYBR v Minister for Home Affairs (“FYBR”).[115] In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In his Personal Circumstances Form the Applicant claimed to have been in Australia since 2005.[116] The Movement History[117] provided by the Respondent shows that the Applicant spent around 16 months in Australia between November 2005 and March 2006, however, he then remained outside Australia until October 2008. He left Australia again in January 2009 and did not return until February 2013. Since then, he has been away from Australia on seven occasions for periods of approximately one week each time. Based on his movement records I find that the Applicant moved to Australia permanently in 2013.
[116] Exhibit G1, s 501 G-Documents, G-12, page 76.
[117] Exhibit G1, s 501 G-Documents, G-18, pages 109 to 110.
The Applicant described himself as “family oriented”, and said his deportation will have an impact on his family.[118] In additional to his wife and three minor children he has an adult son who lived in the family home until recently.[119] He asked that the Respondent consider the impact his deportation will have on his children, his wife and his mortgage.[120] The Applicant contended that “I choose to [sic] a better person and would like to give back to my community if given the opportunity to stay in Australia.”[121]
[118] Exhibit G1, s 501 G-Documents, G-12, page 79.
[119] Exhibit G1, s 501 G-Documents, G-11, page 72.
[120] Exhibit G1, s 501 G-Documents, G-12, page 83.
[121] Exhibit G1, s 501 G-Documents, G-14, page 87.
As I have previously indicated, the Applicant has expressed an intention to obtain gainful employment, and is confident that he will be able to, if he is returned to the wider community.
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia permanently when he was 31 years old. He had spent significant time in Australia before that;
·apart from a very minor offence in New Zealand, the Applicant had no criminal record;
·he committed his first offence in Australia three years after moving here permanently;
·his offending spans a relatively short period but includes:
oa serious drug offence;
oa home invasion involving a female victim and where other females and children were present, which he committed on parole; and
oan attempt to pervert the course of justice which he committed while in prison;
·the nature of harm to individuals or the community from that sort of offending includes serious harm;
·there is a substantial risk that he will re-offend;
·he commenced offending after suffering a workplace injury that rendered him unemployed and in pain;
·prior to suffering that injury he had a good work history. As such, he has made a modest positive contribution to the Australian Community. He was diligent and hardworking in prison, which adds to his contribution;
·he has a wife in Australia who is finding his absence stressful and she is struggling financially; and
·he has four children, including three minor children, who will be adversely impacted by his continued absence.
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community by committing serious offences. While there are some matters that weigh in his favour, and his family will be adversely impacted by his continued physical absence from their lives, I am satisfied that the expectations of the Australian community weigh heavily in favour of non-revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant commenced offending three years after moving to Australia permanently. Prior to that he held gainful employment. He is confident he will secure employment should he be returned to the wider Australian community. These matters add a modest measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant has lived permanently in Australia for seven years, five of those in the wider community. He has spent less than a quarter of his life in Australia. He has a wife, four children, a brother, cousins to whom he is very close, other relatives and some friends in Australia. Several people speak well of him. With respect to paragraph 14.2(1)(b), I accept that the Applicant has strong ties within the community. This weighs in his favour.
Overall, I am satisfied that that the strength, duration and nature of ties to the Australian community warrants the allocation of a significant level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non‑revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d) is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant has three stepsiblings who live in New Zealand, in the South Auckland area, who he said he texts every now and then.[122]
[122] Transcript, page 16, lines 30 to 34.
He has visited New Zealand for trips of around one week on seven occasions since relocating to Australia.[123] He gave evidence that these trips were for holidays or to attend ceremonies where a person close to him gets the Samoan traditional tattoo.[124] He said “good friends and family” would come to those ceremonies,[125] and that most of those people live in New Zealand or Australia.[126] On at least one of these trips he visited the Auckland area.[127]
[123] Exhibit G1, s 501 G-Documents, G-18, pages 109 and 110; transcript, page 17, lines 19 to 20.
[124] Transcript, page 17, lines 3 to 9; page 43, lines 35 to 40.
[125] Transcript, page 43, lines 42 to 46; page 44, lines 25 to 30.
[126] Transcript, page 44 lines 1 to 5.
[127] 21 January to 27 January 2016; transcript, page 16, lines 38 to 46.
It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand. New Zealand is culturally and linguistically similar to Australia. The Applicant is in good health, and he is employable.
The Applicant may face some difficulty in re-establishing himself in New Zealand, however he is not without support, and any difficulty would be short-term only and would not prevent him from successfully re-settling there.[128]
[128] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
Considering all of these matters, I am of the view that this Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs significantly in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C.
Application of the Direction, therefore, favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Bellamy.

................................[SGD].......................................
Associate
Dated: 22 April 2020

Date of hearing: 3 April 2020

Applicant: Setu Tuaoi (via telephone)

Solicitors for the Respondent: Mr Jake Kyranis

Sparke Helmore Lawyers
“Attachment A – Exhibit List”

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents

R

-

13 FEB 20

R1

Tender Bundle

R

-

13 MAR 20

R2

Respondent’s Statement of Facts, Issues and Contentions

R

13 MAR 20

13 MAR 20

A1

Statements of cousins of the Applicant

A

-

29 MAR 20

A2

Applicant’s Statement

A

1 APR 20

1 APR 20

[2020] AATA 922

22 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date of hearing:	3 April 2020
Applicant:	Setu Tuaoi (via telephone)
Solicitors for the Respondent:	Mr Jake Kyranis
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents	R	-	13 FEB 20
R1	Tender Bundle	R	-	13 MAR 20
R2	Respondent’s Statement of Facts, Issues and Contentions	R	13 MAR 20	13 MAR 20
A1	Statements of cousins of the Applicant	A	-	29 MAR 20
A2	Applicant’s Statement	A	1 APR 20	1 APR 20