Uasi and Minister for Home Affairs (Migration)

[2019] AATA 638

Uasi and Minister for Home Affairs (Migration) [2019] AATA 638 (2 April 2019)

Division:GENERAL DIVISION

File Number:2019/0216           

Re:Langiila Uasi

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:2 April 2019

Place:Sydney

The decision under review is affirmed

..........................[SGD].............................................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – NON-REVOCATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – expedited matter – Class BB Subclass 155 Five Year Resident Return Visa – Where Applicant does not pass the character test – 12 months’ imprisonment or more – Whether discretion to revoke cancellation of visa is applied – Considerations in Direction 79 – Whether there is any other reason to revoke the cancellation of the Applicant’s visa – Decision under review affirmed

Legislation

Kava Management Act 1998 (NT)

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affair [2018] FCA 1311

Allan and Minister for Immigration and Border Protection [2016] AATA 1077

Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Theodore Tavoularis

1 April 2019

BACKGROUND

1. Mr Langiila Uasi (“the Applicant”) is a citizen of Tonga. He arrived in Australia in 2004 and has lived here permanently since 18 September 2005. On 10 March 2017, his Class BB Subclass 155 Five Year Resident Return (Permanent) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment for more than 12 months and was serving a full time term of imprisonment. The Applicant subsequently applied for this cancellation to be revoked. On 8 January 2019, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa (“the Decision under Review”).

2. On 14 January 2019, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the abovementioned non-revocation decision.  

   ISSUES

3. 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.

4. There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]

   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…[2]

   [1] [2018] FCAFC 151.

   [2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

5. There are therefore two issues presently before the Tribunal:

   (a)Whether the Applicant passes the character test; and

   (b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

6. 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.[3] I will address each of these grounds in turn.

   [3] Ibid.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

7. 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”.

8. There was no apparent resistance from the Applicant at the hearing to a suggestion that he does not pass the character test as he has a substantial criminal record. The Applicant’s position on this point was, to my mind, appropriately taken because on 13 April 2016, the Applicant was sentenced to an aggregate custodial period of four years’ imprisonment for various serious offences.[4] Although this sentence contained certain stipulations about release on parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[5]

   [4] Exhibit 7, section 501 G-Documents,G3, pages 35-36.

   [5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.

9. Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.

   IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?

10. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with 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 s 501CA (“the Direction”) applies.[6] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    …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.[7]

    [6] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.

    [7] The Direction, sub-paragraph [7(1)(b)].

11. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

12. Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.

13. The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extent of impediments if removed.

14. I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]

    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.[9]

    [my insertion]

    [8] [2018] FCA 594.

    [9] Ibid at paragraph [23].

15. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:

    (i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (ii)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;

    (iii)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;

    (iv)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;

    (v)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;

    (vi)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

    (vii)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.

16. I will now turn to addressing these considerations.

    Primary Consideration A: Protection of the Australian community from criminal or other serious conduct

17. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

18. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be readily gleaned from the one and a half page length of his National Police Certificate.[10] His offending history is not substantial and comprises two specific periods, each dealing with two different levels of offending. Stated succinctly, the offending history can be summarised thus:

    The first period/level of the offending

    [10] Exhibit 7, section 501 G-Documents, G3, pages 35-36.

Court	Court Date	Offence	Court Result
Fairfield Local Court	1 April 2005	Driver/rider state false name or address	Fined: $500
		Driver/rider state false name or address	Fined: $500
		Never licensed person drive vehicle on road – 1st offence	Fined: $500
Bankstown Local Court	18 January 2007	Never Licensed person drive vehicle on road – 2nd offence	Dismissed
		Driver/rider state false name/address	Fined: $100 plus payment of court costs ($67)
Fairfield Local Court	30 April 2008	Responsible person/custodian not disclosed driver’s identity	Fined: $500 plus payment of court costs ($70)
Fairfield Local Court	10 June 2008	Destroy or damage property (less than or equal to $2000)	Fined: $750 plus payment of court costs ($70)
		Negligent driving (not occasioning death/grievous bodily harm (GBH))	Fined: $750 plus payment of court costs ($70)
Fairfield Local Court	10 June 2008	Assault occasioning actual bodily harm	Fined: $750 plus payment of court costs ($70)
Fairfield Local Court	19 January 2010	Drive on road etc while licence suspended	Bond (section 10): 2 years
Fairfield local court	13 April 2012	Use carriage service to manage/harass/offend	Fine: $1200

The second period/level of the offending

Court	Court Date	Offence	Court Result
Darwin Court Of Summary Jurisdiction	2 April 2014	Breach of bail granted	Convicted: discharged
Darwin Court of Summary Jurisdiction	3 June 2014	Possess commercial quantity Kava	Convicted: sentenced to a custodial term of 12 months, suspended after 14 days for an operational period of 2 years[11]
		Supply commercial quantity Kava	Convicted: sentenced aggregated with immediately preceding sentence for possession offence
		Bring liquor into alcohol protected area	Convicted: Fined $100.
Darwin Supreme Court	13 April 2016	Supply commercial quantity Kava	Convicted: head sentence 4 years with non-parole period of 3 years backdated to 22/07/2015
		Breach of suspended sentence imposed on 3 June 2014	Convicted: sentenced to serve 6 months imprisonment cumulatively on the immediately preceding sentence

[11] The sentence was backdated to 20 May 2014: Exhibit 7, section 501 G-Documents, G3, pages 35.

The Nature and Seriousness of the Applicant’s Conduct to Date

1. On any reasonable view, the first part or period of the Applicant’s offending cannot be said to be overly serious. This early phase of his offending primarily involves a lack of respect for the laws and regulations governing the licensing of drivers to operate motor vehicles in the state of New South Wales. While such offending is not to be taken lightly, it is more redolent of a lack of respect for lawful authority than any inherent criminality.

2. There are, however, two instances of offending in this first phase of the offending history that warrant some analysis and discussion. The first of those offences was dealt with by the Fairfield Local Court on 10 June 2008. The offending involved assault occasioning actual bodily harm. It arose from a disagreement with another motorist about the parking of their respective vehicles. According to the Police Narrative of the relevant facts, the Applicant became instantly aggressive because both of the occupants of the other vehicle heard him say “Learn how to park, you fucking wog.” The Applicant then alighted from his car and became involved in quite aggressive and harmful behaviour recorded in the Police Narrative as follows:

   “…The accused got on top of the victim’s vehicle and walked towards the victims. He said ‘Hit me, come on hit me you fucking cunt.’ …The accused punched the victim 1 to his left cheek with his right closed fist. This caused the victim immediate pain to his left cheek and caused swelling and bruising under the left eye. The victim 1 pushed the accused to his chest in an attempt to get away. The victim 1 ran towards the outdoor covered section of McDonalds. The accused followed him. Fearing further assaults, the victim 1 picked up a chair and held it in front of him with both hands to distance himself from the accused. The accused ran towards the victim. The victim 1 threw the chair in the direction of the accused, and continued to ran [sic] away. As the victim was running away he turned around and saw the accused pick up a chair with both hands and swung it down onto the victim’s left shoulder. The victim started to walk away. The accused then picked up another chair, swung the chair at the accused [sic] hitting him in the left shoulder. The accused picked up another chair and threw it at the victim. The chair hit the left side of the victim’s head and the ear. This caused immediate pain to the left side of the victim’s head. As this was occurring, the victim 2 dialled ‘000’…”[12]

   [12] Exhibit 6, Bundle of Documents, Tab D, page 42.

3. As graphic and concerning though this Police Narrative is, the Applicant’s conduct was punished by a fine in the sum of $750 with an ancillary order that he pay court costs in the sum of $70.

4. The second of these offences in the first phase of the Applicant’s offending history came before the Fairfield Local Court on 13 April 2012. The offending culminated in a charge and conviction for an offence involving the use of a carriage service to menace/harass/offend. The offending derives from domestic difficulties the Applicant was experiencing at that time with his wife. The relevant Police Narrative records the incident thus:

   “There was an incident in 2008 where the accused assaulted the victim and caused actual bodily harm. An AVO was made enforceable however his [sic] since expired. There was also a recent allegation of assault last week (30/03/2012) however no formal action was taken by police…The victim holds fears that due to the threats, the accused will approach her and cause physical harm to her. She bases this fear on the fact that he has assaulted her and caused injury in the past, and has recently been violent towards her…Police hold similar fears for the victim and the fear the accused will attend the current living address of the victim to physically harm her. Police are concerned because the accused, Langiila UASI, and the victim…have been married for seven (7) years. They have lived together during that time however have been separated for the past two (2) months…About 10pm on Thursday 5^th April 2012, the victim was at her parents [sic] house when she received a text message on her mobile phone. She checked her number and saw that it was from the accused…The text message read, ‘HEY MOTHER FUCK U WANT ME TO LOOK FOR U N KICK UR ASS’…The accused sent a second text message to the victim’s mobile phone, which read ‘BEFORE WE SEE COURT I WANT MY MUM TAPA BACK IF NOT RUN FOR YOUR LIFE’… The accused sent a third message which read, ‘I WIL DO SOMETHING U NEVER C IN UR LIFE N DONT GIVE A FUCK TO ANYONE.’ The victim replied via text message and told the accused to ‘Just leave it’ and move on with his life. The accused sent a fourth text message, ‘WHAT U WANT ME TO DO U WANT ME TO TURN AROUND AND BE BAD FOR U’… The victim tried to calm the accused down by replying that she was not afraid of him. The accused replied via text message, ‘I WILL CHECK ALL DA MOTHER FUCKER THEY GET INTO MY HOUSE AND WE SEE WHAT HAPPEN’…

   …

   The accused participated in an electronically recorded interview where he made full admissions to sending each of the text messages to the victim’s phone. He stated that he was angry because the victim had attended his house and ‘messed up’ the house. When asked if he felt the messages may feel threatening to the victim, he stated, ‘I don’t know.’”.[13]

   [13] Ibid, pages 32-33.

1. It is in the second phase of the Applicant’s offending history that the significantly more serious offending is committed. On 13 April 2016, he was convicted in the Supreme Court of the Northern Territory in Darwin on one count of Supply Commercial Quantity Kava. For that offence, he was sentenced to four years’ imprisonment. Also on that day, the Applicant was convicted of breaching a suspended sentence that had been imposed on him on 3 June 2014 for one count of Possess Commercial Quantity Kava and two counts of Supply Commercial Quantity Kava. For these offences the Applicant received a custodial term of six months to be served cumulatively with the sentence imposed on 13 April 2016.

2. The seriousness of the offending involving the possession and supply of kava offences is self-evident from even a cursory review of the facts surrounding it. The Applicant was convicted on the basis of being the principal member of a known criminal network involved in the large-scale sourcing and supply of kava to remote Indigenous communities in the Northern Territory, particular Arnhem Land. It would seem that in the course of detecting and eventually charging him, the Applicant was the primary target of a police operation aimed at this unlawful activity.

3. The level of sophistication of the offending has been well-summarised in the Delegate’s decision under review:

   “19. On 7 June 2015 Mr UASI booked a hotel room at the Alatai Holiday Apartments in Darwin to be used by [the Applicant’s co-offender]…who met him at the apartments after driving from…in the company of four aboriginal people…gave Mr UASI a large amount of money from kava sales in Arnhem Land. After receiving the money, Mr UASI left the apartments and drove to… Dundee Downs, where he collected 48 kilograms of kava. That evening at 10pm, Mr UASI drove to a bus stop of Cox Peninsula Road where he met [the Applicant’s co-offender]…and placed the 48 kilograms of kava from his vehicle into [the Applicant’s co-offender’s] vehicle…then drove to Katherine. [The Applicant’s co-offender’s] vehicle was intercepted by police near Katherine at 3:00am on 8 June 2015 and the 48 kilograms of kava was seized.

   20. On 21 July 2015 police conducted surveillance along Cox Peninsula Road and a police vehicle followed his vehicle were he was apprehended on Clarence Street. Police searched the vehicle and found a kava drinking bowl and a key to a cabin at… Dundee Downs. Police searched the cabin at Dundee Downs and found numerous 70 gram bags of kava in various storage containers, three sets of digital scales, unused clip-seal bags, various scoops and a metal briefcase containing a large quantity of personal papers belonging to Mr UASI.

   21. In the record of interview by police…Mr UASI denied traveling on the Cox Peninsula Road while under surveillance or ever having been to the Dundee area.

   22. The court stated that the total quantity of kava seized was 219.163 kilograms which is almost 10 times the commercial quantity of kava. The current price of a bag of kava in remote communities where Mr UASI had been supplying is $150 per bag. The net worth of 250 kilograms of kava sold in the Northern Territory would be worth more the $250,000.

   23.The court stated that Mr UASI is not authorised to possess or sell kava in the Northern Territory and the offending is serious, which I agree. Mr UASI committed this offence when he was on a suspended sentence of imprisonment for similar offences – the possession and supply of kava. Despite the opportunity given by the court on 3 June 2014 to moderate his behaviour without going to jail, Mr UASI has continued to reoffend, moreover, in a leading way by recruiting others to work for him in supplying and selling kava in remote aboriginal communities. Of concern is that kava sold in those communities has a serious damaging effect on the health of aboriginal people and creates social and economic problems.”[14]

   [14] Exhibit 7, s501 G Documents, G2, pages 24-25.

4. In sentencing the Applicant on 13 April 2016, His Honour Acting Chief Justice Southwood noted these things about the Applicant’s offending:

   “The offending is serious offending. The offender is the principal of a criminal network engaged in the distribution of large quantities of kava. He recruits aboriginal people to supply the kava and the kava is sold in remote aboriginal communities. Kava sold in those communities has a serious deleterious effect on the health of aboriginal people in those communities and creates social and economic problems which are now well established. Critically, it also removes significant amounts of money from poor communities”[15].

   [15] Ibid, G4, page 40.

5. As I understood the submissions of the Respondent’s representative, the seriousness of the Applicant’s criminality arising from his offending involving the unlawful possession and supply of kava derives from three things:

   1)The Applicant was not acting alone or in isolation. The offending was clearly part of an criminal network with a significant commercial purpose;

   2)The Applicant was not just a participant in that criminal network, he was sentenced on the basis of being its ‘principal’; and

   3)The Applicant deliberately targeted this illegal activity around possession and supply of kava to Aboriginal communities in the Northern Territory, well-knowing of the vulnerability of those communities to abusing alcohol and/or alcohol-derived substances. He also knew of the financial vulnerability of those communities towards the unlawful supply of substances such as kava, and targeted his activity accordingly.

6. 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)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (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)...

7. Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction directs a decision-maker to a consideration of whether the Applicant’s history of offending contains an element of violence. Clearly, it does. His abovementioned offending arising from little more than a disagreement with another motorist about parking arrangements for their respective vehicles culminated in a serious physical attack on at least one victim. It also culminated in a charge and conviction for assault occasioning actual bodily harm. While I note the offending was punished by a relatively moderate fine in the sum of $750 plus $70 for court costs, I am inclined to accept that the moderate nature of the penalty had more to do with the stage of the Applicant’s offending history when this offending occurred, rather than the nature of the offending itself.

8. While I have not particularised the circumstances of the Applicant’s offending that came before the Fairfield Local Court on 10 June 2008, it is sufficient to mention that this incident culminated in a conviction for the destruction or damage of property having a value of less than $2000. It is not a stretch to suggest that an element of force and/or violence is necessarily involved in the destruction of property at this sort of value.

9. In terms of a theme of violence in his offending conduct, one should also have regard to the Applicant’s domestic violence history with his wife, culminating in the making of at least one Apprehended Violence Order. The Applicant’s violence towards his wife in a domestic context is also notable for the purposes of this sub-paragraph (a). The Police Narrative for an incident that occurred on 15 December 2008 notes that:

   “Both the victim and the POI had minor injuries. The victim had some redness to her left cheek area and the POI had 2 minor cuts, one on his head and the other on his right forearm. The POI was treated and cleared by ambulance officers. POI was returned to Marylands Police Station as an Intoxicated Person for his own safety and to prevent any Breach of the Peace from occurring at the location in Guildford.”[16]

   [16] Exhibit 6, Bundle of Documents, Tab D, page 40.

10. Thus, sub-paragraph (a) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the violent aspects inherent in the Applicant’s criminal history are clear indicators of the seriousness of his offending.

11. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction refers to the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed. While the Applicant’s offending in a domestic violence context cannot be characterised as criminal offending per se,[17]’ it undeniably involved an element of violence towards his spouse. I also take into account that one of the victims of the Applicant’s violent offending has been a child. In the abovementioned assault occasioning actual bodily harm offence, the Police Narrative records that “About 3:00pm on 7 March 2008 the victim 1 picked up his sister, the victim 2 from school. They drove towards McDonalds on Court Rd, Fairfield.”[18] Clearly, “victim 2” in this Police Narrative is a school-aged child/minor.

    [17] Not at least until such a domestic violence order is found to have been breached.

    [18] Exhibit 6, Bundle of Documents, Tab D, page 42.

12. Of perhaps greater relevance for the purposes of this sub-paragraph (b) is the Applicant’s offending involving a charge and conviction for using a service carriage to menace/harass/offend a victim (his wife). The language and tone of the abovementioned text messages that he sent to her can only be read in one way. Despite her attempts to moderate and control his behaviour, the Applicant continued to send text messages of a violent nature. Significantly, the Applicant attributed his conduct involving the sending of these threatening messages to his wife having attended the matrimonial home and having “messed up” the house. As well, the Applicant appears to have limited insight into this aspect of his offending because when asked if he felt the messages may have felt threatening to his wife, he responded with “I don’t know”.[19]

    [19] Ibid, page 33.

13. This sub-paragraph (b) of paragraph 13.1.1(1) of the Direction is relevant to this consideration because the Applicant’s violent offending has been directed to both a woman (his wife) and a child/minor (the abovementioned ‘victim 2’). Application of this sub-paragraph (b) results in a finding that the Applicant’s criminal offending to date must be viewed as very seriously or at the very least, seriously.

14. Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community are to be regarded as serious. As I have already recounted, the Applicant deliberately ­targeted his illegal activity around the possession and supply of kava to Aboriginal communities in the Northern Territory well-knowing of the vulnerability of those communities to abusing alcohol and/or alcohol-derived substances. The significant point about this offending is that its commercial outcome was predicated on the exploitation of the susceptibility of those Aboriginal communities to such substances.

15. His Honour Acting Chief Justice Southwood clearly had the theme of this sub-paragraph (c) in mind when sentencing the Applicant. The further point is that in recruiting Aboriginal people to supply and sell the kava to remote Aboriginal communities, the Applicant must surely have known that those communities would have been adversely affected in a financial sense. He must also surely have known that issues of substance abuse place a significant strain on both state/territory and Commonwealth budgets directed at the wellbeing of remote Aboriginal communities. Thus, not only did the Applicant’s conduct financially and physically affect the Aboriginal people who consumed the kava, it also impacted, in an adverse way, upon resources financed by Australian taxpayers that would otherwise have been directed to the support of those Aboriginal communities.

16. The Applicant’s conduct involving the unlawful possession and supply of kava to remote Aboriginal communities is squarely conduct contemplated by this sub-paragraph (c). As such, it militates in favour of a finding that his conduct is of a serious nature.

17. Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. Even a cursory review of the Applicant’s National Police Certificate demonstrates he has an offending history that runs from April 2005 to April 2016. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.

18. In the early phases of his offending history, the Applicant rightly received the benefit of non-custodial penalties in the form of, for example, monetary fines and the imposition of a good behaviour bond. As outlined earlier in the summary of the Applicant’s offending history, there are two phases to it. It is clear that little or no deterrent effect was achieved by the imposition of non-custodial terms for his offences committed in that period. Having regard to the second phase of his offending, when viewed on a cumulative basis, the totality of the custodial terms imposed upon the Applicant since June 2014 comprise a significant period of custodial time.

19. Stated concisely, those custodial terms (in bold) expressed on a cumulative basis for only the sentencing event that occurred in the Darwin Supreme Court on 13 April 2016, are as follows:

    ·Supply commercial quantity of kava: 4 years’ imprisonment with a non-parole period of 3 years backdated to 22/07/2015

    ·Breach of suspended sentence imposed on 3 June 2014 for one count of possess commercial quantity kava and at least one count of supply commercial quantity kava: 6 months cumulatively on the 4 year immediately-preceding sentence

20. It should also be noted that when the Applicant first came before the Darwin Court of Summary Jurisdiction on 3 June 2014 for one count of unlawful possession of a commercial quantity of kava and at least one count of unlawfully supplying a commercial quantity of kava, he received a head sentence of 12 months’ imprisonment, which was generous sly suspended after him serving just 14 days in custody. That head sentence of 12 months was suspended for an operative period of two years. Thus, in strictly arithmetical terms, it can be said the Applicant has been sentenced to respective head custodial terms for a total of five years, comprising the 12 months’ imprisonment imposed on him on 3 June 2014 and the four years’ imprisonment imposed on him on 13 April 2016.

21. I am thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.

22. Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Looking at the two above-mentioned periods of the Applicant’s offending, it appears he has committed something in the order of 11 offences in the first period and 6 in the second period.[20] On one view, his offending (actually dealt with by lawful authority) may not necessarily have been serious from its commencement in 2005. However, it is undeniable that it has graduated to a very serious level through its evolution.  For present purposes, my assessment of this Applicant’s offending is (1) that it is undeniably frequent and (2) it is escalating in seriousness.

    [20] It should be noted that on 3 June 2014 the Applicant was sentenced to at least one count of supplying a commercial quantity of kava.

23. The Applicant arrived in this country in 2004. He has been in this country for approximately 15 years. Giving him the benefit of the time he has spent in criminal custody and/or immigration detention during his time here (circa four years),[21] he has been dealt with by lawful authority – in the form of individual sentencing episodes – on no less than 10 occasions. This equates to a sentencing episode approximately every one year and six months.  Viewed another way, he has been in this country for 15 years and has committed 17 offences since 2005.  Adopting the figure of 15 and dividing it by the number of offences (17), results in at least one offence committed each and every year of the totality of his time in this country. If one discounts his time in this country by the amount of time he has been out of the community as a result of finding himself in criminal custody and/or immigration detention, these ratios are even more sobering.

    [21] I have adopted a combined total of four years for the Applicant’s time out of the Australian community, comprising his three years in criminal custody, backdated to mid-2015, and the approximately 12 months he has spent in immigration detention commencing in approximately mid-2018.

24. In the hearing before the Tribunal, it was propounded by the Applicant that the maximum sentence for supply of a commercial quantity of kava in the Northern Territory is a period of 8 years’ imprisonment[22] and that his offending should not be regarded at the serious end of the spectrum because the head sentence imposed on him on 13 April 2016 was half the maximum. Such a contention should be rejected because of two primary reasons. First, the Applicant was the principal of a significantly sized criminal network seeking to profit from the vulnerability of remote Aboriginal communities abusing such substances. Second, the Applicant’s conduct involving the unlawful possession and supply of commercial quantities of kava was punished by a not-insignificant head custodial term of four years. As mentioned, the imposition of a custodial term is usually the last resort in the sentencing hierarchy. There is, to my mind, no question that the four year head custodial term imposed in 2016 is clearly indicative of the seriousness of his offending.

    [22] See Kava Management Act 1998 (NT) s 12(1).

25. Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the frequency of the Applicant’s offending and its increasing severity is such as to render his offending as very serious.

26. Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending  and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant’s offending is broad in its scope. It demonstrates a lack of capacity to distinguish right from wrong, especially in its first phase. It is not respectful of the harm that his very serious offending relating to the supply of commercial quantities of kava could have caused both to remote Aboriginal communities and the broader Australian community. Perhaps most significantly for present purposes, a critical result of the cumulative effect of the Applicant’s offending is that it demonstrates that he is not respectful of the lawful authority governing the Australian community to which he seeks to be readmitted.

1. A notable cumulative effect of the Applicant’s offending is to re-offend 12 months after receiving his first sentence in relation to kava in June 2014. He generously received a suspension of the 12 month custodial term then imposed on him, but then committed identical offences barely a year later in mid-2015. The cumulative effect of his offending has caused the Applicant to fail to appreciate the second chance he was given by virtue of the wholly suspended sentence he received in June 2014. The result is that the Applicant’s offending has culminated in him being removed from the mainstream Australian community either as a result of being in criminal custody or immigration detention for approximately the last four years.

2. The application of this sub-paragraph (f) can only lead to a finding that the cumulative effect of the Applicant’s offending and its increasing seriousness is clearly indicative of its very serious nature.

3. I have had regard to sub-paragraphs to (g), (h) and (i) of paragraph 13.1.1(1) of the Direction and do not consider that those factors have application to the factual matrix presently before me.

4. Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c) (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the totality of the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s criminal history is not a short one and his appearances before lawful authority are indeed numerous. On any reasonable view, the Applicant’s difficulties with lawful authority have featured very significantly during his time in this country.

5. Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

6. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:

   (i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (ii)Paragraph 13.1.2(2)(b) requires me to consider 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 re-offending.

   The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct

7. Any consideration of a non-citizen’s risk to the Australian community were the non-citizen to commit further offences or engage in other serious conduct is informed by the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

8. Concerningly, the Applicant has experienced little or no deterrent effect from the various sentencing regimes that have been imposed upon him thus far. His offending has any one of the following flavours: (a) his early offending demonstrated a marked lack of respect for lawful authority, particularly with regard to the management and operational control of a motor vehicle; (b) his pre-2014 offending also includes significant transgressions into the personal rights of others, be they his spouse (Apprehended Violence Order and threatening text messages) and/or members of the general public with whom he may have had a basic disagreement over car parking arrangements (assault occasioning actual bodily harm); and (c) succumbing to the dangerous impulse of “easy money” and “big money” apparently available to those who participate in the possession and supply of commercial quantities of an illegal substance.

9. The Applicant arrived here working as a marine engineer for a shipping. He then worked in the meat processing industry in New South Wales from 2004 to 2011. He elected to commence his own meat processing business in 2011, “Uasi Family Meat”. The business ran into financial difficulty and he was forced to close it and cease its operations in 2012. This business failure resulted in a great deal of residual debt. It also had an adverse effect on the Applicant’s mental health. The business failure occurred shortly after the birth of his now six year old child.

10. There is little or no evidence before the Tribunal to convincingly demonstrate that the Applicant has learned to moderate his conduct such as to respect the lawful authority governing the community to which he seeks re-admission. Likewise, there is little or no evidence to convincingly demonstrate that, if confronted with a physical or other confrontation that would require him to “walk away”, the Applicant would do so. Finally, the Tribunal cannot be convinced that, faced with similar financial stricture to that which he experienced after the forced closure of his meat processing business in 2012 he would not again resort to the lure of “easy money” available in unlawful activity involving commercial supply and distribution of illicit substances.

11. Were he to be returned to the Australian community, I am of the view that the Applicant will most likely return to his offending ways and, if so, such offending would, at the very least, be of a similar nature and severity as the offending which brought him before lawful authority between 2005 and 2016. Although perhaps a presumptive stretch, given the escalating nature of his offending, the nature of harm arising therefrom could well be very serious.

12. I have difficulty in accepting any submission to the contrary. In this regard, I am mindful of the principle that the community’s tolerance for any risk of re-offending becomes lower as the seriousness of potential harm increases. Were this Applicant to re-offend, the resulting harm would be very serious and it could conceivably involve the occasioning of very serious and even catastrophic harm to members of, in particular, the Australian Indigenous community and the Australian community more broadly.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

13. Any assessment of the likelihood of the Applicant re-offending and otherwise engaging in further serious unlawful conduct must commence with an examination of the extent to which the Applicant has insight into what he has done wrong in the past. The Respondent notes that, based on the Applicant’s criminal history, there is a high likelihood of this Applicant reverting to his offending ways.[23]

    [23] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 7.

14. Is such a contention correct? The answer to this question depends on several factors arising from the material. The Applicant has clearly not experienced any deterrent effect from the sentences imposed upon him thus far. I have already described the gradually escalating nature of the severity of the sentences imposed upon him through the course of his offending history. I think the most significant demonstrator of a propensity to re-offend is his blatant disregard of the very favourable and almost wholly suspended sentence imposed on him for the first episode of kava-related offending in 2014. That was a sentence of 12 months, wholly suspended after 14 days for an operative period of two years. This sentence had no deterrent effect on the Applicant from re-engaging in the unlawful kava trade in the Northern Territory, because less than 12 months later he re-offended and did so in a very significant way.

15. The Applicant’s lack of insight into his offending was also recorded in a clinical assessment interview conducted by the Department of Correctional Services in the Northern Territory in May 2016: “Mr Uasi stated that he is unhappy that Kava is illegal in NT as it is his national ceremonial substance and he does not view Kava as a drug.”[24] He told this assessor that he “…does not see Kava as a drug, believes there are no victims to his offending behaviour and blames his mate for ‘dobbing him in’.”[25]

    [24] Exhibit 6, Bundle of Documents, Tab A, page 1.

    [25] Ibid, page 7.

16. The likelihood of the Applicant re-offending can also be gleaned from questions put to him by the assessor about his employment prospects. He was asked the following questions: (1) Does he have a job waiting for him once he is released?; (2) does he have any plans for employment once he is released?; and (3) does he intend to undertake further study? The assessor recorded the following responses: “Mr Uasi may have employment upon release, however this is some time away. Mr Uasi stated that he would still apply for a license to import Kava and hoped the government would change their mind on this as he is not interested in repeating his previous exploits and returning to prison.”[26]

    [26] Ibid, page 8.

17. To my mind, these responses are a significant demonstrator of the high likelihood of the Applicant returning to his offending ways. He refuses to disassociate himself from dealing in kava as a means of earning his livelihood. For cultural reasons best known to him, he considers kava an almost harmless vice, deserving of a change in government policy such that it be decriminalised in the Northern Territory. The unreliability and unconvincing nature of his response which he provided to the assessor arises from the comment that while he hopes government will change its mind about kava, he is not interested in re-offending in any future activity involving the commercial sale and supply of kava. The inherent inconsistency of this response creates uncertainty as to whether the Applicant has genuinely developed any meaningful insight into his offending.

18. My suspicion is that he knows what he has done (with regard to kava) is wrong, but that he thinks it is not as “wrong” as, for example, unlawfully possessing and supplying commercial quantities of, say, opiate-based drugs such as heroin or other illicit drugs such a methamphetamine. This presumption is misplaced and plainly incorrect. One need look no further than the significant penalties imposed on the Applicant for his unlawful activity involving the possession and supply of commercial quantities of kava compared to often-similar sentences for unlawful activity involving other illicit substances. This is most probably why the Applicant speaks of legislative change in relation to kava such that he could obtain a licence to commercially deal in it.

19. In a similar vein of lacking the necessary level of insight into the nature of his offending, the Applicant says:

    “…my criminal history reveals that I have committed a number of offences in Australia…it must be accepted that there has been a trend of increasing seriousness of my criminality in Australia. For example, my previous offending in Australia resulted in the imposition of good behaviour and small monetary fines and suspended sentences. In contrast, my criminality not [sic] related to the gang crime violence offences but an issue with ‘Natural herb’ made into alcohol (Kava) which the government of Scott Morrison is planning on lifting embargo and given licenses for importation to Australia during his recent visit to Pacific Island.”[27]

    [27] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), pages 5-6, paragraph [24].

20. Similarly, the Applicant has poor insight into the effect of his very serious offending in relation to kava. He says:

    “…that my offending for failure to comply with Supply of Kava offences, this may be treated as reasonably serious offences, given that I received a small period of imprisonment and fines for these offences…

    …there is no evidence that my criminality was committed against vulnerable members of the community. For example, my offending did not involve minors, the elderly and the disabled. Otherwise my criminal history does not reveal criminality associated with violent gang crime and/or sexual crimes (which are viewed seriously by the Australian Government).” [28]

    [28] Ibid, page 5, paragraphs [20]-[21].

21. This lack of insight is also evident in a statement provided by the Applicant’s wife where she says that:

    “[Kava] is our traditional and religious drink…is not only sacred but also necessary in our ceremonial functions for example weddings, birthdays, funerals and chiefly gatherings.

    Kava is not illegal in other states of our country [Australia] apart from the Northern Territory which my husband was found guilty.

    …

    …Kava is not like drugs such as ice or marijuana and the crime is not murder or child molestation or rape.”[29]

    [29] Exhibit 7, s 501 G Documents, G9, page 79.

22. The Respondent speaks of a “lack of remorse”[30] on the part of the Applicant with regard to his kava offending. I do not think such a contention is entirely correct. For example, the Applicant says “…I have learnt  my lessons, remorseful and I have been rehabilitated.”[31] 

    [30] Exhibit 3, Respondent’s SFIC, page 9, paragraph [53].

    [31] Exhibit 1, Applicant’s SFIC, page 7, paragraph [36(a)].

23. I have identified four key characteristics of the Applicant’s offending history and conduct to date that point towards the convincing likelihood of his re-offending;

    (a)First, the frequency of his offending since arriving in this country in 2004 is clear and obvious. He has been in this country for 15 years and in that time he has been dealt with by lawful authority – in the form of individual sentencing episodes – on no less than 10 occasions. This equates to a sentencing episode approximately every one year and six months, excluding the approximately four years he has spent in either criminal custody (circa three years) and immigration detention (circa one year);

    (b)Second, the Applicant’s history evinces a consistent refusal to accept and respect lawful authority and to otherwise respect certain privileges that became available to him as a member of our community. In particular, in the first phase of his offending history he continued to offend despite the imposition of relatively light sentences in the form of fines. He entirely ignored, in the second phase of his history, the quite generous and almost wholly suspended 12 months sentence imposed on him for kava-related offending in 2014 and, instead, proceeded to more seriously offend in the unlawful possession and supply of commercial quantities of kava in 2015. In those circumstances, an absence of deterrent effect indicates that the offending conduct is more readily capable of being repeated. 

    (c)Third, it should be noted that the Applicant talks down the severity of his offending in the unlawful supply and commercial sale of kava in the Northern Territory. There is no rational basis to such a contention, nor is the seriousness of his offending ameliorated by any prospect (real or otherwise) that any governmental authority will change its views about the illegality of the conduct involving kava that was committed by the Applicant; and

    (d)Fourth, there is next to no expert or other evidence that the factors giving rise to his propensity to offend have either been conclusively diagnosed or are otherwise the subject of effective remedial treatment by suitably qualified medical professionals. Allied to this observation (and finding) is the fact that the Applicant has next to no insight into the nature of either the causative factors behind his offending or the nature and potentially catastrophic harm resulting from that offending.

    Conclusion: Primary Consideration A

24. To summarise, my finding is that this Applicant’s demonstrated lack of insight into his offending, coupled with the frequency of his offending, points to a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community. This is despite the best efforts of sentencing courts in their respective efforts to deter him from further unlawful conduct. Were he to re-offend, particularly in the realm of the unlawful possession and commercial supply of kava, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and, quite conceivably, catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.

    Primary Consideration B: The best interests of minor children in Australia

25. 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.

26. The Respondent’s Statement of Facts, Issues and Contentions indicates that the Applicant has two minor biological children residing in Australia. The Respondent rightly concedes that:

    ·     he maintains a close relationship with his 2 biological children, in particular his eldest child;

    ·     he is in regular contact with his children via telephone and video calls, and talks with his son daily via video calls;

    ·     although the Applicant’s daughter was 9 months old when the Applicant was imprisoned and he has not played a direct parental role for her, he has kept abreast of her growth and development through photos.”[32]

    [32] Exhibit 3, Respondent’s SFIC, page 9, paragraph [56].

27. The Applicant’s contentions about this Primary Consideration B can be summarised as follows:

    ·He enjoys a close personal relationship with his two infant biological children, a son aged six and a daughter aged four. He has also acted as a father figure for a now 19 year old stepdaughter who has resided with the Applicant and his wife since she was five years old. He regards the stepdaughter as his own child. The Applicant speaks of having a loving and meaningful relationship with the two infant children and his stepdaughter and that they have been visiting him “…on numerous occasions over all the months in the immigration detention nearly on a daily bases [sic] and they were unable to visit me in the correctional facility because they could not afford monetary [sic] to travel all the way to northern territory, but we had numerous phone calls.”;[33]

    ·He intends to play a positive parental role in the future lives of the children and “I seeks [sic] to play, and I have been playing, a father figure in the lives of my three children and my long-time wife, emotional and financial supports for them…”;[34]

    ·The Applicant notes that his two biological children are minors “…and they have a fair while to go before they turn 18.”[35] He further notes that “…the children are my immediate family in Australia [sic] and they are Australian citizens. If I were to be deported they will be disadvantaged morally and financially.”[36]

    ·The Applicant contends that “…my children would suffer emotional distress as a result of me being, if I were to be removed to Tonga [sic]. Although my children would be able to have electronic communication with me, that is not the same as face-to--face contact.”[37]

    ·The Applicant further contends that “it must be accepted that there are other person [sic] who already fulfil a parental role in relation to my children – namely…my wife (the biological mother of my children) and that my children has been living in misery and hardship with the cost of living in Australia, that they need me as a sources [sic] of their incomes and supports, to make them to actively involved in sporting activities, to enable them to live comfortable and be able to pay for their sporting events, that said, if I am not there for them, it is going to be very difficult living without me, they all will lives [sic] ‘in a constant state of anxiety and depression’ their life without me ‘consists of a constant struggle’, I want to make sure they go to school, and I am willing to pay for their school fees, that is why I am fighting to stay in Australia and supports and take responsibilities of them. My children all need me to be part of their life. I have been doing fatherly care to all my three children, they all attached that special bond to me. They ‘will all suffer greatly if I am to be deported’ without me in their life. It will ‘only ever be a daily struggle to manage’ my children’s need both their father and their mother on an equally [sic] basis.”[38]

    [33] Exhibit 1, Applicant’s SFIC, page 8, paragraph [42].

    [34] Ibid, page 9, paragraph [44].

    [35] Ibid.

    [36] Ibid, paragraph [45].

    [37] Ibid, paragraph [46].

    [38] Ibid, paragraph [47].

1. In his oral evidence, the Applicant largely repeated the abovementioned written contentions but was frank enough to also say this: “If I was just me, I would happily go back to Tonga, I’d put my hand up and go back to Tonga.” He pointed out (in his oral evidence) that his main purpose in agitating the subject application is to try and remain in Australia so that he can provide for his family. He made it clear that his two biological children and his wife (and, of course, the stepdaughter) will experience significant financial difficulty were he to be removed from their lives as the principal breadwinner. 

2. He was asked about what sort of work he would do if released back into the community, and he said that he would find work in the construction industry, specifically, in the area of concreting. There is a statement in the material from a concreting firm in Canberra that speaks of such work being available to the Applicant were he to return to the community:

   “Concretors Pty Ltd

   To whom it may concern,

   RE: Langiilla Uasi

   Langiila Uasi and his team have worked for CPS Concretors for a number of years. He has always been kind and considerate. He works well within our team of over 30 employees. He is a hard worker and always polite to our clients.

   CPS Concretors look forward to continuing to work with Langiila once he is release [sic].

   If you require anything further or wish to discuss please call out [sic] office on…

   Thank you

   Tony Costanzo

   Director.”[39]

   [39] Exhibit 4, Bundle of Letters of Support/Reference Letters, Document “G”.

3. It emerged during the course of the Applicant’s cross-examination that any return of the Applicant to Canberra for work purposes may involve him coming back into contact with certain individuals with whom he associated in the Northern Territory as part of his offending history relating to the possession and commercial supply of kava. Both the Applicant and his wife sought to ameliorate this evidence by saying that he could readily find work in the building/concreting industry in Sydney (where his wife and children reside) were he to be released back into the Australian community.

4. Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, those factors comprise:

   a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or limited meaningful contact;

   b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;

   c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   d)The likely effect that any separation from the non-citizen would have on the child, taking into account other ways they could maintain contact;

   e)Whether there are other persons who already fulfil a parental role in relation to the child;

   f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

5. Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/children.

6. It is accepted that there has been a long period of absence (in a physical sense) between the Applicant and his two infant biological children. As against that, I accept that the Applicant maintained a constant level of contact with the children while in criminal custody in the Northern Territory (either by telephonic or electronic means) and on a face-to-face basis while in immigration detention. The Applicant has clearly enjoyed a paternal affinity with his children. They have been named after his own mother and father. While he has been out of the community in either criminal custody or immigration detention since his daughter was nine months old, he nevertheless had parental care of his son for two and a half years prior to that.

7. The Applicant is obviously proud of his ethnic background and travelled to Tonga and New Zealand in September 2014 and January 2015 to introduce his son to his family in Tonga and New Zealand. It is, to my mind, important for the children to maintain a strong link with their father’s culture and for them both to have a significant father figure in their lives until they both attain the age of 18 years. 

8. Accordingly, subparagraph (a) of paragraph 13.2(4) of the Direction indicates that the nature and duration of the relationship between the Applicant and his two biological infant children is a factor militating in favour of restoration of the Applicant’s visa rights being in the best interests of those two infant children.

9. Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. It is clear that the Applicant has in the past and will in the future intends to play a positive and active parental role in the lives of both of the children. In the course of maintaining regular contact with them during his time in both criminal custody and immigration detention, the evidence suggests the Applicant has been speaking with his son on an almost daily basis (through electronic means) about issues such as homework, football games on Saturdays, school assemblies and whatever else is going on in his life.

10. Similarly, even though his daughter was nine months old when the Applicant was placed into criminal custody, I am prepared to accept that while he may not have played a direct parental role for her in the past three to four years, he has nevertheless maintained a keen interest in her growth and development. It is clear that the Applicant maintains the same level of almost daily contact with his infant daughter as he does with his infant son. 

11. As I have mentioned earlier, while the now-adult stepdaughter may not fall squarely within the realm of consideration for this specific factor (b), it should be acknowledged that the Applicant has been the primary father figure for her since she was five years old. The stepdaughter gave evidence at the hearing and it emerged from her evidence that during the time of the Applicant’s incarceration, things have gone awry for her in terms of her schooling and her career choices. She spoke of looking up to the Applicant as a father figure and as a person in whom she had trust and confidence to assist her with re-configuring her life and career ambitions. She spoke of an intention of enlisting in the Navy and of making a career in the armed services.

12. I take into account the reality that there are 12 years and 14 years respectively until each of the Applicant’s two biological children attain the age of 18 years. There is thus something in the order of 26 years of parenting left for both the Applicant and his wife in relation to their two infant children. Accepting, as I do, the Applicant’s evidence of a firm intention to play a positive fatherly role in the lives of the two infant children, I consider that this factor (b) weighs in favour of restoration of the Applicant’s migration status is being in the best interest of those two children.

13. Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the two infant children. My immediate conclusion is to find that the Applicant’s prior conduct has had no impact at all on his infant children due to their very young age at the time of his convictions. There is, as well, no direct evidence to suggest that the Applicant’s very serious offending in Australia has had any direct impact on his two infant children.

14. There was some reference in the Applicant’s oral evidence that the infant son experiencing or displaying symptoms akin to ‘depression’ given the lengthy absence of his father from his life. However, in the absence of any independent or expert report explaining or referencing any such symptoms, no significant weight can be allocated to this factor (c). Accordingly, it is of neutral weight to any consideration of this Primary Consideration B.

15. Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the two infant children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. As alluded to earlier, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his two infant children from Tonga by telephonic and/or electronic means. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two infant children via Skype and other digital platforms.

16. As against that, one should have regard to the very active (to the extent possible) involvement of the Applicant in the lives of his two infant children since he has been in either criminal custody or immigration detention. All too often in applications such as this, one sees a declining level of involvement between (usually) a paternal parent and their children. This declining level usually results from the sheer length the absence of the incarcerated paternal figure from the lives of the children or because of an estrangement between the two parents. This is not what has occurred here. As mentioned earlier, I accept the Applicant’s evidence that he has played the most active and extensive role he can play as a father in the lives of the two infant children during his time in both criminal custody and immigration detention. Accordingly, this factor (d) weighs in favour of restoration of the Applicant’s migration status being in the best interests of the two infant children.

17. Sub-paragraph (e) of paragraph 13.2(4) of the Direction also asks whether there are other persons who already fulfil a parental role in relation to the children. On the present state of the evidence, clearly, there are. On his own evidence, the Applicant has already “…accepted that there are other person [sic] who already fulfil a parental role in relation to my children – namely…my wife (the biological mother of my children…”[40] In terms of “other people” who assist with the parenting of the children, the Tribunal heard evidence from the Applicant’s father in law that both he and his wife assist with the care of the children, primarily with regard to collecting them from school and transporting them to and from sporting events and other activities.

    [40] Exhibit 1, Applicant’s SFIC, page 9, paragraph [47].

18. Both of the wife’s parents are of an advanced age and I can foresee a shortfall in the care of the children were either or both of the parents to become unable to assist in their care. I can see a similar shortfall if the mother of the children, by virtue of the Applicant’s removal to Tonga, becomes the main breadwinner and her parents are not available to assist her with looking after the children. This is where, although it can be said that there are “other persons” currently fulfilling a parental role, a future shortfall in that care may arise and such a shortfall can only, to my mind, be properly met by the Applicant resuming his direct fatherly role in the lives of the two infant children.

19. For the purposes of this factor (e) I am thus of the view that it is of some measure of weight in favour of restoration of the Applicant’s migration status being in the best interest of the two infant children.

20. Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the infant children about their separation from the Applicant, having regard to their age and maturity. The children are aged six and four years, respectively. Apart from the Applicant’s own evidence, which demonstrated an intention to re-establish his paternal role in their lives, there are no known views of the two infant children such as to facilitate a positive application of this factor (f) in favour of the restoration of the Applicant’s visa status. I have earlier mentioned evidence at the hearing about the son’s symptoms of “depression”. To repeat: it would be dangerous to allocate any measure of weight to such lay evidence without it being support by independent and expert opinion.

21. Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.

22. Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence of whether the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. In the absence of any positive finding of the impact of the Applicant’s conduct on any of the children, I am of the view that this factor (h) is of no weight and is not determinative of any finding about Primary Consideration B.

    Conclusion: Primary Consideration B

23. Having regard to:

    (a)the Applicant’s evidence about wanting to re-establish his quite active and involved parental role in the lives of his two infant children;

    (b)the consistent and extensive contact (both telephonic/electronic and face-to-face) maintained by the Applicant with his two infant children during his time in both criminal custody and immigration detention;

    (c)the risk of a shortfall in the care of the two infant children were their mother compelled to act as the sole breadwinner, having particular regard to the advanced age of her parents and the prospects of their future inability to maintain a supportive role for the care of the children;

    (d)the moderate level of weight to be taken from factors (a), (b), (d), and (e) of paragraph 13.2(4) of the Direction;

    (e)the Respondent’s concession that limited weight should be allocated to Primary Consideration B in favour of revocation as it is in the children’s best interests for the cancellation of the Applicant’s visa to be revoked;[41]

    I am of the view that the best interests of the Applicant’s two infant children in Australia, aged six and four respectively, weigh moderately in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh the heavy level of weight I have attributed to Primary Consideration A.

    [41] Exhibit 3, Respondent’s SFIC, page 9, paragraph [58].

    Primary Consideration C

24. I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, 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. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.

25. For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending accompanied, as it is, by his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.

26. The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:

    ·He arrived in Australia in 2004 as a 27 year old and commenced offending in approximately April 2005, barely within a year after arriving here;

    ·He has committed 17 offences since he was first dealt with by lawful authority in this country in April 2005. This equates to approximately one offence committed in each and every year of the totality of this time here in this country;

    ·His offending has been frequent and demonstrates an escalation in its seriousness. This is clear from the two phases of his offending history already outlined in these Reasons. It is also apparent from his lack of insight into the seriousness of possessing and commercially suppling an illegal substance such as kava;

    ·His 15 years in this country have seen him dealt with by lawful authority on no less than 10 occasions, equating to a sentencing episode approximately every one and a half years of his total time in this country, including the time he has spent in criminal custody and/or immigration detention;

    ·His offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention for a period of at least four years, comprising three years in criminal custody and approximately one year in immigration detention;

    ·For the totality of his offending in this country, the sentencing courts have seen fit to impose a total custodial head sentence of four years and six months (54 months). In round terms, the Applicant’s offending has caused sentencing judicial officers, together with the actions of the Respondent relating to his visa, to remove him from the Australian community for 26% of his total time in this country;

    ·He was initially dealt with for his kava offending in mid-2014. He was given a very generous and almost wholly suspended 12 months sentence. This was his “second chance”. He spurned it and re-offended in at least an equivalent or perhaps more significant way 12 months later;

    ·I have found that his offending in this country can only be described as very serious and where I have also found that there is a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community;

    ·There is no definitive, independent or expert evidence before the Tribunal of (1) any diagnosis of psychological or other factors predisposing the Applicant to offend, (2) that those factors have been identified and are now the subject of remedial therapy and management, (3) that the Applicant has demonstrated any level of insight into his offending so that this Tribunal can confidently find that there is no real risk of him re-offending.

27. I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.

1. As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[42]

   [42] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].

2. Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[43] The learned Deputy President thought this paragraph leads a decision maker to:

   102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…

   …

   103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.

   [my underlining]

   [43] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].

3. The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[44]

   In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.

   [my underlining]

   [44] [2017] FCA 1466 at [76]-[77].

4. The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:

   …[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   [77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.[45]

   [my underlining]

   [45] Ibid.

5. In Afu v Minister for Home Affairs,[46] Justice Bromwich said:

   The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.

   [my underlining]

   [46] [2018] FCA 1311 at [85].

6. The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country.

7. I cannot come to that conclusion in light of my findings as to:

   (i)The very serious nature of his offending to date;

   (ii)His demonstrated lack of insight into the nature of his offending;

   (iii)My finding that the resulting frequency of his offending all point to a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community;

   (iv)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend;

   (v)The Applicant’s 10 year history of offending, the escalating nature of that offending and the stark reality that judicial sentencing officers have deemed his criminal offending sufficiently serious such as to remove him from the mainstream Australian community for significant period of his time in this country; and

   (vi)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.

8. I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.

9. At the hearing, the Applicant spoke of wanting to return to the community to, in effect, re-define his life and to participate as a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[47]

   [47] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.

10. The Applicant came to Australia in 2004. He commenced offending barely a year after that, in 2005. His offending has seen him before lawful authority on the following occasions:

    ·April 2005;

    ·January 2007;

    ·April 2008;

    ·June 2008;

    ·June 2008;

    ·January 2010;

    ·April 2012;

    ·April 2014;

    ·June 2014; and

    ·April 2016.

11. To his credit, during his period of incarceration, the Applicant has taken advantage of opportunities offered to him to further educate himself, improve his skills and qualifications in order to make himself more suitable to obtaining lawful and gainful employment. While in custody, he has completed a notable number of courses. They include:

    ·Certificate II in Commercial Kitchen;

    ·Certificate I in Vocational Pathway Training;

    ·Diploma in Web Business Development;

    ·Diploma in Electrical Studies;

    ·Conduct Civil Construction (Skid Steer Loader Operation);

    ·Conduct Civil Construction (Excavation Operation);

    ·Conduct Civil Construction (Wheel Front End Loader); and

    ·Conduct Roller Operations.

12. It should also be noted that the Applicant voluntarily undertook bible study courses with Simon McKee, Coordinating Chaplain at the Darwin Correctional Centre. I further note that the Applicant has obtained both a forklift and heavy vehicle driver license.

13. I am of the view that any proper application of this Primary Consideration C should take into account the reality that any likelihood of the Applicant re-offending is yet to be tested in the community because he has been removed from that community on a continuous basis for approximately the last four years.

    Conclusion: Primary Consideration C

14. Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.

    Other Considerations

15. There are five “Other Considerations” disclosed in the Direction:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.[48]

    [48] The Direction, paragraph [14(1)].

16. I will address each of these considerations, and their respective weights, in turn.

    (a) Non-Refoulement Obligations

17. The Applicant has not made any claims for protection and this Other Consideration (a) is not relevant to determination of this application.

    (b) Strength, nature and duration of ties

18. The Respondent rightly concedes that this Other Consideration (b) weighs in favour of the Applicant.[49] Paragraph 14.2(1)(a)(i) of the Direction provides that less weight should be given to this Other Consideration where the non-citizen began offending soon after arriving in Australia. As against that, paragraph 14.2(1)(a)(ii) of the Direction provides that more weight should be allocated to it if it can be demonstrated that the non-citizen has spent time contributing positively to the Australian community.

    [49] Exhibit 3, Respondent’s SFIC, page 10, paragraph [64].

19. According to his Personal Circumstances Form, appearing in the material,[50] in terms of relatives in Australia, the Applicant has three uncles/aunts, four nieces/nephews and 18 cousins residing here. In terms of relatives residing outside Australia, the Applicant’s parents both reside in Tonga and he has one brother and two sisters who also reside in Tonga. In addition, he has two brothers who reside in New Zealand.

    [50] Exhibit 7, s501 G Documents, G6, page 59.

20. Perhaps most importantly for the purposes of this application, the Applicant’s wife and two infant children, all three of whom are Australian citizens, reside here. Paragraph 14.2(b) of the Direction requires a decision-maker to have regard to the extent of an Applicant’s strength, duration and nature of any family or social links with Australian citizens and to also take into account the effect of non-revocation of the non-citizen’s immediate family in Australia, where those family members are Australian citizens.

21. I have had regard to the letters of support in favour of the Applicant and accept that he has formed social links with people in this country. He has not been dilatory in terms of his employment history in Australia and it is fair to say that he has been in steady employment since he arrived here in 2004, and that he has otherwise been an active participant in his local community.

22. It is to his credit that he attempted to establish his own meat processing business in the early part of this decade. It is unfortunate that the business failed and left him with sizable debts to cover. The business failure also occurred at a time when he and his wife had a new baby to feed as well. So the Applicant was faced with the consequences of a failed business and three mouths to feed. Although not explicitly confirmed in the material, it is more likely than not that the predicament of a failed business and its resulting debts was the primary reason behind his kava offending.

23. Mr John Pastrikos is a Chief Industry Officer at the Darwin Correctional Centre, with 20 years’ experience in that role. His role involves management of the Northern Territory Government’s fleet of vehicles and to also manage the mechanical workshop servicing those vehicles.

24. Mr John Pastrikos provided an impressive reference on behalf of the Applicant.[51] Notably, Mr Pastrikos said “…this is the first personal reference I have written for one of my employees, and I am honoured to do so.” The Applicant was employed in the workshop by Mr Pastrikos for a period of three years. While giving evidence at the hearing, Mr Pastrikos was at pains to point out that the Applicant always went above and beyond the call of duty and said that while the Applicant was employed by him, “…there was never a bad day, not a day off or a change in attitude. He was always very positive, respectful and extremely self-motivated.”

    [51] See Reference of Mr John Pastrikos, Exhibit 4, Bundle of Letters of Support/Reference Letters, Document “E”.

25. Mr Pastrikos said that it would be “extremely difficult” to replace an employee like the Applicant. He regarded the Applicant as “…an asset to my workshop…” He spoke of a quite extraordinary situation involving the Applicant where, in the course of driving one of the vehicles as part of his duties, the Applicant noticed another vehicle on the roadway that had rolled over. There was a driver in the vehicle and no assistance had yet arrived from either a police car or an ambulance. Mr Pastrikos said the Applicant pulled over the vehicle he was driving and went to the vehicle that had rolled over, smashed the glass and removed the occupant to safety and looked after the injured occupant until ambulance attendants had arrived.

26. My Pastrikos vouched for the Applicant’s primary intention to do his best for his family and to do everything he could so that they could achieve their goals and otherwise succeed.

27. Having regard to paragraphs 14.2(1)(a)(i) and (ii), and 14.2(b) of the Direction, I concur with the Respondent’s contention: this Other Consideration (b) weighs in favour of the Applicant.

    (c) Impact on Australian business interests

28. I cannot recall any evidence that this Other Consideration (c) is of relevance in determining this Application. There is no evidence to suggest that the Applicant has had any link to a major project or the delivery of an important service in Australia.  There is no evidence before the Tribunal indicating there would be any impact on Australian business if the mandatory cancellation decision is not revoked.

    (d) Impact on victims

29. In sentencing the Applicant on 13 April 2016, Acting Chief Justice Southwood (in my respectful view) more than adequately outlined the serious health, social and economic problems resulting from the unlawful commercial supply of kava to Indigenous people in remote Aboriginal communities.

30. I have had regard to the deleterious impact of kava use on the health and wellbeing, particularly if kava-using Indigenous Australians. Those ill-effects cannot be denied. While not the equivalent of actual victim impact statements, I have had regard to the “Review of the Misuse of Kava Among Indigenous Australians” appearing in the material.[52]

    [52] Exhibit 6, Bundle of Documents, Tab E, authors: Ms Belinda Uhquhart and Mr Neil Thomson.

31. This Other Consideration (d) weighs against the Applicant.

    (e) Extent of impediments if removed

32. As I understood the material, there are few impediments to the Applicant returning to Tonga. As the Applicant said, he would happily return to Tonga if he did not have the responsibility of a wife and two infant children here in Australia.

33. With specific reference to the three factors appearing in paragraph 14.5 of the Direction, I note the Applicant is a man of 42 years of age in seemingly good health.[53] There are no substantial language or cultural barriers to his return and re-establishment in Tonga.[54] As a citizen of that country, he will have access to any social, medical and/or economic support available to him in Tonga, although, I accept that medical care and social supports in Tonga[55] may not be at the same level as those available to the Applicant in Australia.

    [53] Section 14.5(1)(a) of the Direction.

    [54] Section 14.5(1)(b) of the Direction.

    [55] Section 14.5(1)(c) of the Direction.

34. As mentioned, both of the Applicant’s parents reside in Tonga. He also has two sisters and a brother living in Tonga. Further, it is presumed that he maintains fluency in the local language of Tonga.

35. As noted by the Respondent, the following factors militate in favour of the Applicant finding employment and re-establishing himself in Tonga. He:

    ·completed year 12 in Tonga in 1994 and graduated from Tonga TAFE as a marine engineer in 1998;

    ·has been formally trained as a butcher and meat wholesaler;

    ·served for three years in the Tonga defence forces from 1998 to 2001;

    ·undertook basic military training and was posted to the Royal Tongan Marine and the Tongan Royal Guards;

    ·was employed by Intercontinental Ship Management in the years 2003-2004, where he acted as “Second in Charge of the Watch with the Chief Engineer”;

    ·regularly returned to Tonga prior to his incarceration in 2015; and

    ·has completed an impressive number of courses while in criminal custody.

36. I am of the view that this Other Consideration (e) is of neutral weight to determination of this application.

    Conclusion: Other Considerations

37. The weight attributable to these Other Considerations can be summarised as follows:

    (a)International non-refoulement obligations: is of no weight;

    (b)Strength, nature and duration of ties: weighs in favour of the Applicant;

    (c)Impact on Australian business interests: is of no weight;

    (d)Impact on victims: weighs against the Applicant; and

    (e)Extent of impediments if removed: is of no weight.

    Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

38. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

39. 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 Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.

    ·Primary Consideration B is of moderate weight;

    ·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or even combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

40. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    CONCLUSION

41. The decision under review is affirmed.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[SGD]..............................................

Associate

Dated: 2 April 2019

Date of hearing:	18 March 2019
Advocate for the Applicant:	The Applicant represented himself
Advocate for the Respondent:	Ms Brooke Griffin (Solicitor)
Solicitors for the Respondent:	Australian Government Solicitor